NACY PAIS Vs. S SURENDRA

JUDGEMENT

(1.) This appeal arises out of an order in Ex.Case.No. 15122/2006 dated-19.12.2006 on the file of the 13 Addl. City Civil Judge, Mayohall, Bangalore.

(2.) Brief facts of the case are as under: The first respondent had filed a suit in O.S.No. 10327/1997 before the 13th Addl. City Civil Judge, Bangalore, for injunction restraining the second respondent from interfering with his peaceful possession and enjoyment of the suit schedule properties. In the suit, the first respondent contended that the second respondent had executed an agreement to sell dated 27.11.1996 in respect of the suit schedule properties in his favour and that he was put in possession of the said properties in part performance of the said agreement. The second respondent filed his written statement denying the plaint averments. On the basis of the pleadings of the parties, the Court below framed necessary issues. On 1.9.2005, the parties filed an application under Order 23 Rule 3 of the Code of Civil Procedure reporting settlement of the matter. On the same day, two cheques dated 26.8.2005 and 26.11.2005 for Rs.14,35,000/- and Rs. 15,00,000/- were handed over to the second respondent. At the request of the second respondent, the Court below adjourned the suit to 28.11.2005 without recording the compromise so that the second respondent could report the realisation of the cheques on that day. The second respondent did not report the encashment of the said cheques on 28.11.2005. Therefore, the matter was posted to 17.12.2005 and thereafter to 19.12.2005. On 19.12.2005, the first respondent deposited a sum of Rs.29,35,000/- in the Court. The matter was again posted to 19.1.2006 and on that day, the first respondent sought for recording of the compromise and pass the compromise decree since the second respondent disputed the total consideration payable for sale of the said property. Thereafter, the Court below held an enquiry on the said application and passed a judgment and decree on 18.7.2006 in the following terms:

(3.) Since the second respondent did not obey the decree, the first respondent filed an Execution Petition on 21.08.2006 in Ex. Case. No.15122/2006 for the execution of the sale deed. On 23.08.2006, notice was issued to the 2nd respondent along with a copy of the draft sale deed. On 17.11.2006, the Court below gave time to the 2nd respondent to make submission as to why the 1st respondent should not get the sale deed executed through Court. On 28.11.2006, the appellant filed an application under Order 21 Rule 58 read with Section 47 and Order 21 Rule 101 of CPC requesting the Court below to hold an enquiry with regard to her right in respect of the said property. The Court below dismissed the said application on 19.12.2006. The Learned Judge further directed for execution of the sale deed in favour of the 1st respondent through Court. Accordingly, a sale deed was executed on 21.12.2006 and sent to the office of the Sub Registrar for its registration. The execution petition was closed on 23.12.2006. As stated above, in this appeal, the appellant has challenged the order of the Executing Court dated 19.12.2006, whereby her application raising objection for execution of the decree has been dismissed.