BALAPPA S/O BASAPPA PUJAR SINCE DECEASED BY LRS vs BASAPPA S/O CHANNAPPA KALAVEERAPPANAVAR SINCE DECEASED BY LRS

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RP No. 100031 of 2025
C/W RP No. 100032 of 2025

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD

TH
DATED THIS THE 13 DAY OF NOVEMBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE C.M. POONACHA

REVIEW PETITION NO. 100031 OF 2025

C/W

REVIEW PETITION NO. 100032 OF 2025



IN RP No. 100031/2025

BETWEEN:





1.



BALAPPA
S/O BASAPPA PUJAR
SINCE DECEASED BY LRS

SMT KOKILA
W/O RAMESHREDDY GODHIHAL
AGE ABOUT 46 YEARS
OCC HOUSEHOLD
R/O KUSAGUR
TQ RANEBENNUR
DIST HAVERI 581208

2. SMT KAVITA
W/O NINGAREEDDY GODIHAL
AGE ABOUT 43 YEARS
OCC HOUSEWIFE
R/O KUSAGUR
TQ RANEBENNUR
DIST HAVERI 581208

3. SMT. ROHINI
W/O SHIVAREDDY JANGAREDDY

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AGE ABOUT 42 YEARS
OCC HOUSEWIFE
R/O MOTEBENNUR
TQ BYADAGI
DIST HAVERI 581 160

4. SMT SUNITA
W/O BALAPPA PUJAR
AGE ABOUT 67 YEARS
OCC HOUSEWIFE
R/O MOTEBENNUR
TQ BYADAGI
DIST HAVERI 581 160

5. SRI RAJENDRA
S/O BALAPPA PUJAR
AGE ABOUT 37 YEARS
OCC LECTURER
CURRENT R/O 10TH CROSS
VISHWABANDHU NAGAR
RANEBENNUR
DIST HAVERI 586110

…PETITIONERS
(BY SRI. S A SANDUR, ADVOCATE FOR
SRI. K L PATIL.,ADVOCATE)

AND:









1.
BASAPPA
S/O CHANNAPPA KALAVEERAPPANAVAR
SINCE DECEASED BY LRS

SMT YALLAWWA
W/O BASAPPA KALAVEERAPPANAVAR
SINCE DECEASED BY LRS

SRI CHANDRAPPA S/O BASAPPA
KALAVEERAPPANVAR
AGE 36 YEARS

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OCC COOLIE
R/O YANNIHOSALLI
TQ RANEBENNUR
DIST HAVERI 581 115





2.
SRI SURESH
S/O BASAPPA KALAVEERAPPANAVAR
SINCE DECEASED BY LRS

SMT SUDHA
W/O SURESH KALAVEERAPPANAVAR
AGE 45 YEARS
OCC HOUSEHOLD
R/O TIRUMALADEVARAKOPPA
TQ RANEBENNUR
DIST HAVERI 581 115

3. VARSHINI
D/O SURESH KALAVEERAPPANVAR
AGE 22 YEARS
OCC HOUSEHOLD
R/O TIRUMALADEVARAKOPPA
TQ RANEBENNUR
DIST HAVERI 581 115

4. VIKAS
S/O SURESH KALAVEERAPPANAVAR
AGE 20 YEARS
OCC HOUSEHOLD
R/O TIRUMALADEVARAKOPPA
TQ RANEBENNUR
DIST HAVERI 581 115

5. SRI ASHOK
S/O BASAPPA KALAVEERAPPANVAR
AGE 29 YEARS
OCC COOLIE
R/O YANNIHOSALLI
TQ RANEBENNUR
DIST HAVERI 581 115

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6. SUBHASH
S/O CHANNAPPA KALAVEERAPPANAVAR
AGE 58 YEARS
OCC AGRICULTURE
R/O YANNIHOSALLI
TQ RANEBENNUR
DIST HAVERI 581 115

…RESPONDENTS
(BY SMT. PALLAVI PACHHAPURE .,ADVOCATE FOR
SRI. F.V. PATIL, ADVOCATE FOR R1 TO R6)


THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 OF CPC, PRAYING TO ALLOW THIS PETITION AND REVIEW
JUDGMENT DATED 17.01.2025 PASSED BY THIS HONBLE
COURT IN RSA NO. 2462/2006 PASSED BY THIS HONBLE
COURT, IN THE INTEREST OF JUSTICE AND EQUITY.


IN RP NO. 100032/2025

BETWEEN:





1.
BALAPPA
S/O BASAPPA PUJAR
SINCE DECEASED BY LRS

SMT KOKILA
W/O RAMESHREDDY GODIHAL
AGE ABOUT 46 YEARS
OCC HOUSEHOLD
R/O KUSAGUR
TQ RANEBENNUR
DIST HAVERI 581 208

2. SMT KAVITA
W/O NINGAREDDY GODIHAL
AGE ABOUT 43 YEARS

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OCC HOUSEWIFE
R/O KUSAGUR
TQ RANEBENNUR
DIST HAVERI 581 208

3. SMT ROHINI
W/O SHIVAREDDY JANGAREDDY
AGE ABOUT 42 YEARS
OCC HOUSE WIFE
R/O MOTEBENNUR
TQ BYADAGI
DIST HAVERI 581 160

4. SMT SUNITA
W/O BALAPPA PUJAR
AGE ABOUT 67 YEARS
OCC HOUSEWIFE
R/O MOTEBENNUR
TQ BYADAGI
DIST HAVERI 581160

5. SRI RAJENDRA
S/O BALAPPA PUJAR
AGE 37 YEARS
OCC LECTURER
CURRENT R/O 10TH CROSS
VISHWABANDHU NAGAR
RANEBENNUR
DIST HAVERI 586110
...PETITIONERS
(BY SRI. S A SANDUR, ADVOCATE FOR
SRI. K L PATIL.,ADVOCATE)


AND:





BASAPPA
S/O CHANNAPPA KALAVEERAPPNAVAR
SINCE DECEASED BY LRS

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1.
SMT YALLAWWA
W/O BASAPPA KALAVEERAPPANAVAR
SINCE DECEASED BY LRS

SRI CHANDRAPPA
S/O BASAPPA KALAVEERAPPANAVAR
AGE 36 YEARS
OCC COOLIE
R/O YANNIHOSALLI
TQ RANEBENNUR
DIST HAVERI 581 115

SRI SURESH
S/O BASAPPA KALAVEERAPPANAVAR
SINCE DECEASED BY LRS

2. SMT SUDHA
W/O SURESH KALAVEERAPPANAVAR
AGE 45 YEARS
OCC HOUSEHOLD
R/O TIRYMALADEVARAKOPPA
TQ RANEBENNUR
DIST HAVERI 581 115

3. VARSHINI
D/O SURESH KALAVEERAPPANAVAR
AGE 22 YEARS
OCC HOUSEHOLD
R/O TIRYMALADEVARAKOPPA
TQ RANEBENNUR
DIST HAVERI 581 115

4. VIKAS
S/O SURESH KALAVEERAPPANAVAR
AGE 20 YEARS
OCC HOUSEHOLD
R/O TIRUMALADEVARAKOPPA
TQ RANEBENNUR
DIST HAVERI 581 115

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5. SRI ASHOK
S/O BASAPPA KALAVEERAPPANAVAR
AGE 29 YEARS
OCC COOLIE
R/O YANNIHOSALLI
TQ RANEBENNUR
DIST HAVERI 581 115

6. SUBHASH
S/O CHANNAPPA KALAVEERAPPANAVAR
AGE 58 YEARS
OCC AGRICULTURE
R/O YANNIHOSALLI
TQ RANEBENNUR
DIST HAVERI 581 115
...RESPONDENTS
(BY SMT. PALLAVI PACHHAPURE .,ADVOCATE FOR
SRI. F.V. PATIL, ADVOCATE FOR R1 TO R6)



THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC, PRAYING TO ALLOW THIS PETITION AND
REVIEW JUDGMENT DATED 17.01.2025 PASSED BY THIS
HONBLE COURT IN RSA NO.2460/2006 PASSED BY THIS
HONBLE COURT, IN THE INTEREST OF JUSTICE AND EQUITY.

THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
ORDER WAS PRONOUNCED AS UNDER:

CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

CAV ORDER
The present review petitions are filed seeking to
review the judgment dated 17.01.2025 passed in RSA
Nos.2462/2006 c/w 2460/2006.
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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2. The relevant facts in a nutshell leading to the
1

present review petitions are that, one Sri Channappa was
the owner of an extent of 4 acres 31 and ½ guntas of land
in R.S No.34/2 at Ennehosahalli village, Ranebennur
2 3
Taluk . One Sri Balappa Basappa Pujar entered into an
4

Agreement of Sale on 21.07.1973 with the erstwhile
owner, whereunder the owner agreed to sell the subject
property for a total sale consideration of Rs.8,000/-. That
an earnest money of Rs.2,500/- was paid on the date of
the Agreement of Sale and the balance amount was
agreed to be paid when the Sale Deed was to be
registered. That the agreement holder was put in
possession of the subject property on the date of the
agreement itself. That the erstwhile owner received a
further sum of Rs.2,000/- on 25.02.1974. That the
erstwhile owner died on 11.06.1974 leaving behind two

1
Hereinafter referred to as 'erstwhile owner'
2
Hereinafter referred to as the 'subject property'
3
Hereinafter referred to as the 'agreement holder'
4

Hereinafter referred to as the 'said agreement'
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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5
sons namely, Basappa and Subash . That the present
owners received a further sum of Rs.500/- on 20.07.1975.
That since the present owners refused to execute the Sale
Deed in terms of the said agreement, a legal notice dated
13.12.1996 was issued by the agreement holder. The
present owners got issued a reply dated 19.12.1996.
Thereafter, the agreement holder filed a suit for specific
6
performance (OS No.60/1997 ). In the meanwhile, the
present owners filed a suit for declaration (OS
7
No.162/1997 ) contending that they are the absolute
owners of the subject property and for cancellation of the
revenue entries. It is the case of the present owners in the
said suit that since the erstwhile owner was in financial
difficulty, he entered into an Agreement of Sale dated
06.03.1972 with the agreement holder agreeing to sell the
subject property for a total sale consideration of
Rs.8,000/- and an advance of Rs.2,500/- was paid on the

5

Hereinafter referred to as ‘present owners’
6

hereinafter referred to as 'suit for specific performance'
7

hereinafter referred to as 'declaration suit'
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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date of the said agreement. That the sale transaction was
to be completed within two years from the date of the said
agreement. That since the sale transaction was not
completed, the present owners filed the suit for
declaration. That the said agreement executed by the
erstwhile owner was null and void as also that the present
owners are the absolute owners of the suit property. Both
the suits were clubbed together. The Trial Court vide the
judgment dated 28.01.2003 decreed the suit for specific
performance and dismissed the suit for declaration. It is
pertinent to notice the operative portion of the judgment
passed by the Trial Court, which reads as under:
“The suit of the plaintiff is in O.S No.60/97
decreed with cost. Hereby directed to defendant no.1
and 2 to execute the sale-deed in favour of plaintiff
after receiving the balance sale consideration of
Rs.3,000/- within 4 months of this order. Otherwise to
refund the earnest money of Rs.5,000/- with interest
at the rate of 24% per annum from the date of
agreement in the alternative. The suit in O.S
No.162/96 is hereby dismissed.
Draw decree accordingly. Copy of the judgment
kept in O.S.No.162/96”.

Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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3. Being aggrieved, the agreement holder
preferred RA.No.27/2003 challenging the judgment and
decree passed in the suit for specific performance (OS
No.60/1997) insofar as the Trial Court directed refund of
earnest money with interest. RA No.24/2003 was filed by
the present owners challenging the judgment and decree
passed in the suit for specific performance (OS
No.60/1997). RA No.25/2003 was filed by the present
owners challenging the dismissal of the suit for declaration
(OS No.162/1996). The First Appellate Court disposed of
the said first appeals by its judgment dated 22.06.2006,
whereunder RA No.27/2003 filed by the agreement holder
was allowed and the appeals (RA Nos.24 and 25/2003)
filed by the present owners were dismissed. The First
Appellate Court set aside the portion of the Trial Court
judgment, which ordered for refund of the security deposit
amount.

4. Being aggrieved by the dismissal of RA
No.24/2003, the present owners preferred RSA
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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No.2460/2006; and being aggrieved by the dismissal of RA
No.25/2003, the present owners preferred RSA
No.2462/2006. The said appeals were allowed vide
judgment dated 17.01.2025 (under review), wherein it
was ordered as under:
"ORDER
i. The above appeals are allowed;
ii. The judgment dated 22.06.2006 passed in
RA.No.27/2003 (clubbed with RA.Nos.24/2003 and
25/2003) by the Civil Judge (Senior Division) and
Principal JMFC, Ranebennur is set aside;
iii. The judgment and decree date 28.01.2003
passed in OS.Nos.60/1997 and 162/1996 by the
Principal Civil Judge (Junior Division) and I
Additional JMFC, Ranebennur, is set aside;
iv. The suit in OS.No.60/1997 on the file of the
Principal Civil Judge (Junior Division) and I
Additional JMFC, Ranebennur, is partly decreed
with costs by directing the defendants therein to
refund to the plaintiffs therein the advance amount
of Rs.5,000/- together with interest at 12% p.a,
from the date of suit till date of payment. A further
direction is issued to the plaintiff in the said suit to
handover possession of the suit property to the
defendants in the said suit;
v. The suit in OS.No.162/1996 on the file of the
Principal Civil Judge (Junior Division) and I
Additional JMFC, Ranebennur, is decreed with
costs as follows:
a. The plaintiffs in the said suit are declared to be
absolute owners of the suit property.
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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b. A direction is issued to the revenue authorities
to enter the names of the plaintiffs in the said suit
in the revenue records pertaining to the suit
property."


5. At this juncture, it is pertinent to note that the
judgment and decree passed in RA No.27/2003
whereunder, the judgment of the Trial Court, which
ordered for refund of the security deposit amount was set
aside, has not been challenged by filing a regular second
appeal.

6. Vide the judgment under review, this Court allowed
the appeals filed by the present owners; set aside the
judgment and decree passed by the Trial Court in the suit
for specific performance as well as the judgment and
decree passed by the First Appellate Court in that regard;
partly decreed the suit filed by the agreement holders for
specific performance (O.S.No.60/1997) by ordering for
refund of the advance amount together with interest; and
decreed the suit (O.S.No.162/1996) filed by the present
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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owners and declared that the present owners were the
absolute owners of the suit property.

7. The present review petitions are filed by the
agreement holder primarily urging four grounds: First, that
after filing of the second appeals they were dismissed for
non-prosecution, consequent to which, the agreement
holder initiated execution proceedings in E.P.No.27/2006
and in the said execution proceedings, a Sale Deed dated
29.07.2022 has been executed through the Court
commissioner conveying the suit property absolutely in
favour of the agreement holder. That the said execution
proceedings having attained finality, the said aspect of the
matter ought to have been considered by this Court while
ordering for specific performance.

8. Secondly, that the First Appellate Court by its
judgment and decree dated 22.06.2006 had disposed of three
appeals (R.A.Nos.27/2003 filed by the agreement holder; as
well as R.A.Nos.24 and 25 of 2003 filed by the present
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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owners). However, the present owners preferred two second
appeals (RSA Nos.2460/2006 and 2462/2006), and no appeal
was filed impugning the judgment of the First Appellate Court
passed in R.A.No.27/2003. That the First Appellate Court,
having allowed R.A.No.27/2003 and having set aside the
findings recorded by the Trial Court on Issue No.6 with regard
to refund of the advance amount, the said finding operates as
res judicata against the present owners in the second appeals
preferred by them.

9. Thirdly, that the legal representatives of the present
owners, i.e., appellant No.1(a) – Smt. Yallawwa W/o.
Basappa Kalaveerappanava and appellant No.1(c) – Sri.
Suresh S/o. Basappa Kalaveerappanavar passed away on
16.01.2011 and 27.09.2014 respectively. The legal
representatives of the said deceased appellants No.1(a) and
1(c) were not brought on record. The same tantamounts to
a material irregularity in the second appeals filed by the
present owners.
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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10. Fourthly, that the agreement holder was put in
possession of the suit property and the present owners in
the suit for declaration filed by them did not seek for
possession of the suit property. Hence, this Court ought to
have considered this aspect of the matter while exercising
discretion and ordering for the specific performance. Hence,
it is contended that this Court ought not to have ordered for
specific performance of the agreement of sale as well as for
possession of the suit property to be handed over, which is
an error apparent on the face of the record.

11. The learned counsel for the review petitioners
elaborating on the aforementioned contentions put forth on
behalf of the review petitioners has also relied on various
judgments in support of the said contentions.

12. Opposing the review petitioners, the learned
counsel for the respondents contends that, although the
decree, which was the subject matter of challenge in the
second appeals, had been executed during the pendency of
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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the second appeals, and the sale deed has been executed in
the course of execution proceedings, the same is subject to
the outcome of the said second appeals. That merely since
the decree under challenge has been executed, the said fact
will not render the second appeals infructuous. That any
action done in the course of the execution proceedings is
subject to the outcome of the second appeals.

13. With regard to the contention that the purchaser
has already been put in possession of the suit property, and
there was no relief of possession that was sought for in the
suit, it is contended that the said aspect of the matter has
been considered by this Court while adjudicating upon the
second appeals filed by the respondents and the said aspect
is not liable to be reviewed.

14. With regard to the contention that no second
appeal has been filed assailing the allowing of
R.A.No.27/2003, it is contented that the said
R.A.No.27/2003 was filed challenging a portion of the
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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judgment of the Trial Court regarding the finding on Issue
No.6 and the entire judgment and decree in the suit was
not under challenge in R.A.No.27/2003. That while allowing
of R.A.No.27/2003, only the relief of refund of deposit
money was set aside, which aspect was not challenged by
the present owners in the second appeals, since the entire
decree in O.S.No.60/1997 was challenged vide RA.Nos.24
of 2003. That the finding of the Trial Court on Issue No.6,
consequent to which, the Trial Court had ordered for refund
of the deposit amount along with the decree for specific
performance has been assailed by the agreement holders.
That the entire decree passed in O.S.No.60/1997 having
been assailed in RA No. 24 of 2003 and thereafter in RSA
No.2460 of 2006, the question of assailing a portion of the
decree does not arise, since the decision of the First
Appellate Court in all the first appeals merges with one
another. It is specifically contented that since the entire
decree in O.S.No.60/1997 having been challenged (in RA
No. 24 of 2003 and thereafter in RSA No.2460/2006), the
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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question of filing another second appeal assailing the
allowing of RA No. 27 Of 2003 , which set aside of only a
portion of the decree in O.S.No.60/1997 does not arise.

15. With regard to the contention of the review
petitioners that appellant Nos.1(a) (Smt. Yallava) and 1(c)
(Sri. Suresh) died on 16.01.2011 and 27.09.2014, it is
contented that appellant No.1(a) (Smt. Yallava) is the
mother of the remaining appellants and her children are
already being on record as appellant Nos. 1(b) (Sri.
Chandrappa) to 1(d) (Sri. Ashok), and she was adequately
represented by the other appellants. With regard to
appellant No.1(c) (Sri. Suresh), it was contented that the
brothers of appellant No.1(c) were already on record as
appellant Nos.1(b) (Sri. Chandrappa) and 1(d) (Sri.
Ashok). Hence, the estate of appellant No.1(a) and 1(c)
were adequately represented in the appeals. Further it is
contented that appellant No.2 is the paternal uncle of
appellant Nos.1(b) and 1(d) and that there was no
partition amongst the said family members. Hence, it is
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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contented that the question of abatement of the appeals
does not arise.

16. Learned counsel for the respondents has also
elaborated on the contentions put forth in opposition to
the review petitions and also relies upon various
judgments.

17. The submissions made by both the learned
counsels have been considered and the material on record
have been perused.

18. Although various judgments have been cited by
both the learned counsels, reference will be made to the
said judgments which are necessary for adjudication of the
questions that arise for consideration of the present
appeals.

19. With regard to the contention of the review
petitioners that Appellant no. 1(a) (Smt. Yallavva) and
1(c) (Sri.Suresh) in the second appeal (RSA No.
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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2462/2006) had passed away on 16.01.2011 and
27.09.2014 respectively and that their legal
representatives were not brought on record, it is pertinent
to note here that appellant number 1(a) (Smt. Yallavva)
was the mother of appellant No.1(b) - (Sri. Chandrappa),
1(c) - (Sri. Suresh) & 1(d) - (Sri. Ashok). Hence her
children were already on record . Further Appellant No.
1(b) (Sri. Chandrappa) and Appellant No. 1(d) (Sri.
Ashok) were the brothers of the deceased appellant No.
1(c) (Sri. Suresh). The appellant No. 1(b) and 1(d) were
already on record and they were represented by counsel.
Further it is to be noted that appellant No.2 (Sri. Subhash)
was the paternal uncle of appellant Nos. 1(c) and 1(d).
Hence, it cannot be stated that the estate of the said
deceased appellant No. 1(a) (Smt. Yallavva) and appellant
No. 1(c) (Sri. Suresh) were not represented by their
respective legal heirs/representatives.

20. With regard to the contention of the review
petitioner that RA No.27 of 2003 was not challenged and
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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hence the findings recorded while allowing RA No 27 of
2003 would operate as res judicata , as noticed while
appreciating the factual matrix herein above, RA No. 27 of
2003 was filed by the Agreement Holder, assailing the
portion of the judgment and decree passed by the trial
Court, whereunder refund of earnest money of Rs.5,000/-
with interest at 24% per annum from date of the
agreement was ordered. In this context it is pertinent to
notice that the Trial Court while decreeing the suit for
specific performance [O.S. No. 60 of 1997] directed the
defendants No.1 and 2 to execute the sale deed in favour
of the plaintiff after receiving the balance sale
consideration of Rs.3,000 within 4 months from the date
of the judgment. It further ordered that in the event the
balance sale consideration was not deposited, refund of
the earnest money of Rs.5,000 with interest at 24% was
ordered. The agreement holder filed RA No. 27 of 2003
before the first appellate court assailing the portion of the
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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Trial Court judgment which ordered for refund of the
earnest money.

21. It is pertinent to note that the owners had
preferred RA No. 24/2003, assailing the decreeing of the
suit for specific performance i.e. O.S No. 60 of 1997.
Further the owners had also filed RA No. 25 of 2003,
assailing the dismissal of the suit for declaration i.e., OS
No. O.S No. 60 of 1997. The First Appellate court, vide its
judgment dated 22.06.2006, allowed RA No. 27 of 2003
and dismissed RA No. 24 and 25 of 2003. Accordingly the
first Appellate Court set aside the portion of the Trial court
judgment which ordered for refund of the deposit amount.
The owners filed RSA No. 2460 of 2006 challenging the
dismissal of RA No. 24 of 2003. Hence the entire decree
passed in the suit for specific performance, was assailed
by the owners in RA No.24 of 2003 and thereafter in RSA
No. 2460 of 2006.
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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22. While considering the aspect whether the
findings recorded by the first appellate court while allowing
RA No. 27 of 2003 would operate as res judicata since the
same was not challenged, learned counsel for the
petitioner relied upon the judgment of the Hon'ble
Supreme Court in the case of Gangai Vinayagar Temple
8
V.s Meenakshi Ammal , whereunder, the Hon'ble
Supreme Court has held as under:
"27. Procedural norms, technicalities and processual law
evolve after years of empirical experience, and to ignore
them or give them short shrift inevitably defeats justice.
Where a common judgment has been delivered in cases in
which consolidation orders have specifically been passed,
we think it irresistible that the filing of a single appeal
leads to the entire dispute becoming sub judice once
again. Consolidation orders are passed by virtue of the
bestowal of inherent powers on the courts by Section 151
CPC, as clarified by this Court in Chitivalasa Jute Mills v.
Jaypee Rewa Cement [(2004) 3 SCC 85] . In the instance
of suits in which common issues have been framed and a
common trial has been conducted, the losing party must
file appeals in respect of all adverse decrees founded even
on partially adverse or contrary speaking judgments.
While so opining we do not intend to whittle down the
principle that the appeals are not expected to be filed
against every inconvenient or disagreeable or
unpropitious or unfavourable finding or observation
contained in a judgment, but that this can be done by
way of cross-objections if the occasion arises. The decree
not assailed thereupon metamorphoses into the character

8
AIR Online 2014 SC 174
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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of a “former suit”. If this is not to be so viewed, it would
be possible to set at naught a decree passed in Suit A by
only challenging the decree in Suit B. Law considers it an
anathema to allow a party to achieve a result indirectly
when it has deliberately or negligently failed to directly
initiate proceedings towards this purpose. Laws of
procedure have picturesquely been referred to as
handmaidens to justice, but this does not mean that they
can be wantonly ignored because, if so done, a
miscarriage of justice inevitably and inexorably ensues.
The statutory law and the processual law are two sides of
the judicial drachma, each being the obverse of the other.
In the case in hand, had the tenant diligently filed an
appeal against the decree at least in respect of OS No. 5
of 1978, the legal conundrum that has manifested itself
and exhausted so much judicial time, would not have
arisen at all."


23. However, it is to be noticed that RA.No.27/2003
was filed by the agreement holder before the First
Appellate Court assailing the portion of the Trial Court in
the suit for specific performance for refund of the earnest
money.


24. In this context, it is pertinent to note that the
Trial Court decreed the suit for specific performance filed
by the agreement holder and directed defendant Nos.1
and 2 in the said suit to execute the sale deed in favour of
the plaintiff (agreement holder) after receiving the balance
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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consideration of Rs.3,000/- within four months. It is
further ordered that in the event the balance sale
consideration was not deposited refund of earnest money
of Rs.5,000/- was to be made with interest at 24%. The
owners preferred RA.No.24/2003 assailing the entire
decree passed in OS.No.60/1997 (suit for specific
performance). The owners had also preferred
RA.No.25/2003 assailing the judgment and decree passed
in OS.No.160/1997 (suit for declaration). RA.Nos.24/2003
and 25/2003 having been dismissed, the owners preferred
RSA.No.2460/2006 and RSA.No.2462/2006 respectively.
The First Appellate Court had also allowed RA.No.27/2003.
However, no second appeal was filed assailing
RA.No.27/2003.


25. Learned counsel for the respondents is justified
in contending that RA.No.27/2003 was filed by the
agreement holder assailing only the portion of the Trial
Court judgment in the suit for specific performance which
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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ordered for refund of the earnest money and that the
entire judgment and decree passed in the suit for specific
performance was assailed by the owners in
RA.No.24/2003, the dismissal of which was assailed in
RSA.No.2460/2006. Accordingly, the contention of the
review petitioners that the owners not having assailed
RA.No.27/2003, the reliefs sought for in the second
appeals (RSA.Nos.2460 and 2462/2006) ought not to be
granted, cannot be accepted. The present fact situation is
not one, wherein a decree passed by the Trial Court has
not been assailed by the owners. The owners having
assailed the decree in the suit for specific performance in
RA.No.24/2003 and the dismissal of the said
RA.No.24/2003 having been assailed in
RSA.No.2460/2006, the contention put forth on behalf of
the review petitioners in this regard cannot be accepted.

26. With regard to the contention of the review
petitioners that the Decree for specific performance passed
by the Trial Court, which was, as modified by the First
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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Appellate Court, has been executed during the pendency
of the second appeals before this Court, it is pertinent to
note, that the aspect that the decree has already been
executed and the sale deed has been registered in favour
of the agreement holder through the Court Commissioner
was brought on record during the pendency of the second
appeals. The said aspect alone would not render the
second appeal infructuous and the outcome of the
execution proceedings would be subject to the result of
the second appeals.

27. In this context, it is pertinent to notice a Co-
ordinate bench judgment of this Court in the case of
9
Sanjeevama and others v. G. Krishna and others,
relied upon by the petitioner wherein it reads as under:
"6. When the matter was taken up for hearing, a
submission was made by the counsel for the
respondents/plaintiffs stating that decree granted by the
Trial Court in favour of the plaintiffs has been executed by
the plaintiffs and he submitted that the appeal has
become in fructuous. Therefore, he requested the Court
to dismiss the appeal as having become infructuous.
Based on the above said submission, Appellate Court

9
ILR 2004 KAR 2338
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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dismissed the appeal as well as the application filed by
the appellant under Order-41 Rule-27 of CPC. Being
aggrieved by the concurrent findings of both the Courts
below, present appeal is filed by the defendants.
9. The facts of this case are not in dispute. It is not in
dispute that after granting a decree by the Trial Court,
respondents by filing an execution have removed the
construction put up by the appellants/defendants on
MNOP portion. It is no doubt true that the decree has
been executed, but the question is whether the appellate
Court on the said ground can dismiss the appeal of the
appellants, without considering the case of the appellants
on merits. Appellate Court without considering the
provisions of Section 144 of CPC has disposed of the
appeal. If the Appellate Court on merits had come to the
conclusion that the judgment and decree granted by the
Trial Court shall require to be set aside, in such an event,
Appellate Court had every power to allow the appeal and
dismiss the suit of the plaintiffs by reversing the judgment
and decree of the Trial Court. In such an event, appellants
were entitled to invoke the provisions of Section 144 of
CPC and request the Court for restitution. But in the
instant case, Appellate Court, without considering the
provisions of Section 144 of CPC and the case of the
appellants on merit, has dismissed the appeal as having
become infructuous. Therefore, this Court is of the opinion
that the procedure followed by the Appellate Court as bad
."
in law and requires to be set aside


28. It is also pertinent to notice Section 144 of the
CPC, which reads as under:
" 144. Application for restitution? (1) Where and in so far
as a decree or an order is [102][varied or reversed in any
appeal, revision or other proceedings or is set aside or
modified in any suit instituted for the purpose the Court
which passed the decree or order] shall, on the
application of any party entitled to any benefit by way of
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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restitution or otherwise, cause such restitution to be
made as will, so far as may be, place the parties in the
position which they would have occupied but for such
decree or order or [103][such part thereof as has been
varied, reversed, set aside or modified], and, for this
purpose, the Court may make any orders, including
orders for the refund of costs and for the payment of
interest, damages, compensation and mesne profits,
which are properly [104][consequential on such variation,
reversal, setting aside or modification of the decree or
order.]
Explanation.-For the purposes of sub-section (1) the
expression "Court which passed the decree or order" shall
be deemed to include,-
(a) where the decree or order has been varied or reversed
in exercise of appellate or revisional jurisdiction, the Court
of first instance;
(b) where the decree or order has been set aside by a
separate suit, the Court of first instance which passed
such decree or order;
(c) where the Court of first instance has ceased to exist or
has ceased to have jurisdiction to execute, it, the Court
which, if the suit wherein the decree or order was passed
were instituted at the time of making the application for
restitution under this section, would have jurisdiction to
try such suit.
(2) No suit shall be instituted for the purpose of obtaining
any restitution or other relief which could be obtained by
application under sub-section (1)."


29. It is clear from the aforementioned legal
position that even if the Decree which was the subject
matter of an appeal had been executed, Section 144 of the
CPC provides for restitution. Having regard to the settled
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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legal position as noticed above, merely since the decree
for specific performance has been executed and the sale
deed has been registered in favour of the agreement
holder, the said aspect alone, would not in any manner
interdict this Court from adjudicating upon the second
appeals. Accordingly the contention of the review
petitioner in this regard is to be rejected.

30. With regard to the contention of the review
petitioner that he was already in possession of the
property and the said aspect of the matter ought to have
been considered while adjudicating upon the aspect of
specific performance, it is pertinent to note that the said
aspect of the agreement holder being in possession of the
suit property was considered by this Court while
adjudicating the second appeals. In this context it is
relevant to notice the substantial question of law which
was framed. The same is extracted hereunder for ready
reference:
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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“Whether the Courts below was justified in
decreeing the suit for specific performance when
admittedly the agreement dated 21.07.1973 and the
suit was filed 14 years after the said agreement?”


31. Subsequently, this Court after answering the
substantial questions of law dated 31.01.2007 in RSA No. 2460
of 2006 and 10.06.2008 in RSA NO. 2462 of 2006 respectively,
framed a further substantial question of law. The relevant
portion of the said aspect of the matter from the judgment
under review reads as under:
“If the substantial question of law dated
31.01.2007 and 10.08.2008 are answered in the
negative, whether any further order is required to be
passed with regard to the relief claimed by the owners
in OS No.162/1997 and with regard to possession of
suit schedule property?”


32. While considering, the further substantial question
of law which was with regard to the relief claimed by the
owners in OS.No.162/1997 and with regard to the possession
of suit property, this Court ordered as under:

"42. While considering the aspect of refund it is relevant
to note at this juncture that the agreement holder has
enjoyed the usufructs of the suit property that has been
in his possession from the year 1975 without paying the
entire sale consideration or completing the sale
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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transaction under the agreements dated
06.03.1972/21.07.1973. The rights of the parties under
the agreements dated 06.03.1972 /21.07.1973, having
been adjudicated upon in the present appeals and the
agreement holder admittedly having come into
possession of the suit property by virtue of the original
deceased owner executing the agreements of sale in his
favour, all rights of the parties having adjudicated upon,
it is just and proper that since this Court has recorded a
finding that the agreement holder is not entitled to
specific performance of the suit property, appropriate
orders be passed ordering for redelivery of possession of
the property to the present owners and declaration of
title of the present owners.
43. Having regard to the factual matrix and legal
position, as noticed above, the substantial question of
law dated 31.1.2007 and 10.6.2008 framed for
consideration are answered in the Negative and the
substantial question of law framed at para 36 of this
judgment is answered in the Affirmative. Further, the
land owners are required to refund the amounts received
by them together with interest @ 12% per annum and
the agreement holder is required to return the
possession of the said property to the present owners."

(emphasis supplied)


33. Having regard to the fact that the aspect of
possession was already considered by this Court vide judgment
dated 17.01.2025 (under review), the said contention cannot
be re-agitated in the present review petition, since any
adjudication of the aspect of possession in the present review
petition would tantamount to re-agitating the question that was
decided in the second appeals which has been decided by
judgments dated 17.01.2025 (under review).
Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

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34. Accordingly, the review petitions are dismissed as
being devoid of merits.


Digitally Signed by CHEPPUDIRA
MONNAPPA POONACHA

(C.M. POONACHA)
JUDGE











PNV
List No.: 19 Sl No.: 1