JAGANNATH SHETTY Vs. P. DAMAYANTHI, PRAKASH KATARIYA, REP. BY THEIR PA HOLDER M.K. GOWTHAM CHAND, V.S. PREMACHANDRA AND V.S. NARENDRA

JUDGEMENT

(1.) DEFENDANT No. 3 is in appeal questioning the correctness and legality of order passed in O.S. No. 7346/2005 dated 29.05.2008 by III Addl. City Civil Judge, Bangalore City, allowing the application filed by plaintiffs under Order 39 Rules 1 ad Order 39 Rule 2 and restraining defendant No. 3/his agents from alienating or creating any kind of charge over suit schedule property pending disposal of suit. Heard Sri Shaker Shetty, learned counsel appearing for appellant (defendant No. 3) and Sri P. Mahesha, learned counsel appearing for respondent Nos. 1 and 2. Notice to respondent Nos. 3 and 4 has been held sufficient vide order dated 12.08.2011. Perused the order passed by Trial Court.

(2.) IT is the contention of Sri Shaker Shetty, learned counsel appearing for defendant No. 3 that defendant Nos. 1 and 2 had executed an agreement of sale in favour of defendant No. 3 on 31.07.1979 agreeing to sell the suit schedule property and said agreement being a contingent contract, defendant No. 3 filed a suit in O.S. No. 6381/1995 seeking specific enforcement of agreement dated 31.07.1979 and had obtained an order of temporary injunction on 22.09.1995 restraining defendant Nos. 1 and 2 herein from alienating or encumbering suit schedule property and during the pendency of said suit defendant Nos. 1 and 2 have entered into an agreement to sell the suit schedule property to third parties and as such it is void ab -initio and even otherwise thereafter in the said suit namely O.S. No. 6381/1995 defendants have compromised the matter and had agreed to execute the sale deed and pursuant to same on 04.07.2005 they have executed a sale deed in favour of defendant No. 3 and as such, Trial Court could not have granted an order of temporary injunction against 3rd defendant particularly when suit itself was not maintainable. Hence, he seeks for allowing the appeal by setting aside the order dated 29.05.2008 passed by the Trial Court.

(3.) HAVING heard the learned Advocates appearing for the parties and on perusal of order passed by Trial Court, I am of the considered view that following point would arise for my consideration: