Case Note & Summary
The case involves a second appeal filed by the defendant in a suit for specific performance. The original plaintiff had filed OS 198/1991 for specific performance of an agreement to sell executed in 1984. The trial court decreed the suit ex parte. The defendant appealed, but the first appellate court confirmed the decree. Meanwhile, a third party purchaser, who had purchased the property before the decree, was granted liberty by the first appellate court to file an independent suit. The third party purchaser filed OS 494/1994 and succeeded. The defendant then filed the present second appeal against the judgment in RA 19/2005, which had dismissed his appeal. The High Court, after hearing the parties, found no substantial question of law and dismissed the second appeal, upholding the concurrent findings.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court dismissed the second appeal as no substantial question of law arose for consideration. The concurrent findings of fact by the trial court and first appellate court were based on evidence and did not suffer from any perversity or illegality. (Paras 1-4)
B) Specific Performance - Third Party Purchaser - Liberty to File Independent Suit - The first appellate court had granted liberty to the third party purchaser to file an independent suit, which was pursued. The High Court noted that the third party purchaser had already succeeded in his separate suit, and the present appeal by the original defendant did not warrant interference. (Paras 2-4)
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908 raises any substantial question of law warranting interference with the concurrent findings of the courts below.
Final Decision
The High Court dismissed the second appeal, finding no substantial question of law. The judgment of the first appellate court was confirmed.
Law Points
- Specific performance
- collusive suit
- third party purchaser
- liberty to file independent suit
- concurrent findings
- Section 100 CPC
Case Details
2014 LawText (KAR) (12) 18
Regular Second Appeal 1640 / 2010
Sri Ramesh Aditya for Appellant; Sri M Sivappa, Sri Vyasa Kiran Upadhya for R1; Sri Gururaj Salur for R3
C Nagabhushana Reddy and Others
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Nature of Litigation
Second appeal under Section 100 CPC against the judgment of the first appellate court dismissing the appeal in a suit for specific performance.
Remedy Sought
The appellant (defendant in the original suit) sought to set aside the judgment dated 23.3.2010 in RA 19/2005 passed by the I Addl. District Judge, Bangalore Rural District.
Filing Reason
The appellant challenged the concurrent findings of the trial court and first appellate court decreeing the suit for specific performance in favour of the original plaintiff.
Previous Decisions
The trial court in OS 198/1991 decreed the suit for specific performance ex parte. The first appellate court in RA 19/2005 dismissed the appeal and confirmed the decree. The third party purchaser was granted liberty to file an independent suit, which he did in OS 494/1994 and succeeded.
Issues
Whether the second appeal raises any substantial question of law under Section 100 CPC.
Submissions/Arguments
The appellant argued that the suit was collusive between the plaintiff and the vendor.
The respondents supported the concurrent findings and argued that no substantial question of law arose.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court will not interfere with concurrent findings of fact unless they are perverse or based on no evidence. No substantial question of law arose in this case.
Judgment Excerpts
Second appeal is by the defendant in OS 474/1994 who had filed a suit in OS 198/1991 before the trial court at Anekal for specific performance which had been decreed and ultimately in the appeals filed by the plaintiff as well as third party purchaser, both the appeals were dismissed.
The main bone of contention taken by the plaintiff is, it is a collusive suit between his vendor and subsequent purchaser.
Procedural History
The original plaintiff filed OS 198/1991 for specific performance. The trial court decreed the suit ex parte. The defendant appealed, and the first appellate court confirmed the decree. The third party purchaser filed OS 494/1994 and succeeded. The defendant then filed the present second appeal against the judgment in RA 19/2005.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
