IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 23RD DAY OF JULY 2013

BEFORE

THE HON'BLE MR. JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL No.902 OF 2012

BETWEEN:

HUDCO Nivas, A Division of Housing and Urban Development Corporation Limited, (A Government of India Enterprises), having Its Registered Office At 'HUDCO Bhavan', India Habitat Centre, Loudhi Road, New Delhi – 110 003, with its Regional Office at No.703 and 704, Manipal Centre, North Block, 7 th Floor, 47, Dickenson Road, Bangalore – 560 042, Represented by its Senior Manager (Law), Smt. Prabha Unnikrishnan. ...APPELLANT

(By Shri. Varadaraj R Havaldar, Advocate)

AND:

• Rajeev Ramachandran @ Rajeev Nedungodi, Son of Late A.R. Ramachandran, Since dead by legal representative
• a) Sanjeev Nedungadi, son of Late A.K. Ramachandran, Major, Resident of Gulmohar Apartment, Church Street, Richmond Town, Bangalore – 560 025.
• Fine Homes Estate and Investments [Partnership Firm), No.3, 11^th Main Road, 11^th 'B' Cross, Malleshwaram, Bangalore – 560 003, and Also at No.3, Balaji Complex, R.T.Nagar Main Road, R.T.Nagar, Bangalore – 560 032.
• Manohar Karkal, Partner of Fine Homes, No.3, 11^th Main Road, 11^th 'B' Cross, Malleshwaram, Bangalore – 560 003.
• Nithal A Nishak, Resident of No.216, 2^nd Main, HIG Colony,

RMV 2nd Stage, Bangalore – 560 094.

• 5. B.H. Ravi, No.124, 'Srilaligha', Farm Post, RBI Colony, H.A.Farm Post, Ganganagar, Bangalore.
• 6. Manohar Karkal, Resident of No.11-A, Navarathna Apartments, 17th Cross, Malleshwaram, Bangalore – 560 003.
• 7. Smt. K. Kusum, Wife of K. Kotresh, Aged 35 years,
• 8. K. Kotresh, Son of Mrutyunjayappa, Aged about 43 years,

Respondents 7 and 8 are Residing at No.26, 5th Main, 12th Block, Kumara Park (West), Bangalore – 560 020. …RESPONDENTS

*****

This Regular First Appeal filed under Section 96 read with Order – XLI, Rule – 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 10.01.2012 passed in O.S.No.15018/2002 and Misc.No.15032/2002 on the file of the XXVI – Additional City Civil Judge, Mayo Hall, Bangalore, decreeing the suit for recovery of money.

This appeal coming on for Orders this day, the Court made the following:

JUDGMENT

The office having raised an objection as regards the maintainability of the appeal against the order passed under Order XXXVIII Rule 8 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the 'CPC', for brevity), which is treated as a Miscellaneous Petition, is upheld.

2. The appellant was seeking recovery of monies which has been lent to defendants 1 to 6 on the basis of the security furnished by them, which was an agreement of sale in their favour executed by the owner of the property and the same had been brought to attachment before judgment. There was an order of attachment before judgment. Defendants 7 to 10 had filed an application for raising the attachment under Order XXXVIII Rule 8 of the CPC and the same was adjudicated in the original suit itself, but was assigned Miscellaneous No.15032/2002 and ultimately it was held that the property could not have been attached since the title to the property had not been conveyed in favour of defendants 1 to 6, but they were only agreement holders in respect of the same. The suit, however, for recovery of money was decreed in favour of the appellant. It is that portion of the judgment, by which the court below has held that the suit against defendants 7 to 10 as not maintainable and having dismissed the same and also having raised attachment before judgment in Miscellaneous 15032/2002, that a combined appeal against the order passed in the Miscellaneous Petition as well as the dismissal of the suit as against defendants 7 to 10, is sought to be filed before this court.

3. The learned counsel for the appellant would contend that in the face of the office objection that the order passed in the Miscellaneous Petition as well as the dismissal of the appeal against defendants 7 to 10 are inextricably linked and the appellant has lost security of the property that was offered to secure repayment of the monies and therefore, it cannot be said that the appeal was not maintainable against the judgment and decree as well as the order passed in the Miscellaneous Petition, as they arise out of one and the same proceeding, in a suit for recovery.

4. This contention cannot be accepted as the provisions of Order XXXVIII of the CPC would indicate that there is a mechanism provided insofar as the claims set up in respect of the properties brought to attachment before judgment and it having been adjudicated, that defendants 7 to 10 did not convey any title in respect of the property in question in favour of defendants 1 to 6 and was an independent right declared in their favour and therefore, it is treated as a Miscellaneous petition and adjudicated independently. That being so, the remedy of appeal cannot be prosecuted as if it was a part of the judgment and decree as it is compartmentalized and dealt with independently. Therefore, the objection is sustained. The appeal as against the order passed in

6

Miscellaneous 15032/2002 is not maintainable and is accordingly rejected.

In view of the appeal not being entertainable against the order passed in the Miscellaneous Petition, as the appeal insofar as the judgment and decree is only insofar as it pertains to the dismissal of the suit against defendants 7 to 10, even the appeal would not be maintainable and accordingly is disposed of, in that, the appellant has the remedy of enforcing the decree against defendants 1 to 6.

Sd/- JUDGE

nv