M H KRISHNAPPA Vs. D K GOVINDACHAR
HIGH COURT OF KARNATAKA
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PADMANABHIAH J. -
(1.)This is an appeal preferred by the appellant-plaintiff against the order of remand passed by the Additional Subordinate Judge, Bangalore, in R.A.No.239 of 1954, setting aside the judgment and decree passed by the learned Second Munsiff, Bangalore in O.S.No.294 of 1952-53.
(2.)The appellant was the plaintiff and the respondents were the defendants in O.S.No.294 of 1952-53 on the file of the learned Second Munsiff, Bangalore. Plaintiff's suit was one for specific performance of an agreement to sell dated 5-11-1950, executed by the 1st defendant undertaking to sell the schedule property to the plaintiff for a sum of Rs.775. Plaintiff's grievance was that the 1st defendant had subsequent to the date of this agreement sold the property to the 2nd defendant who had purchased the same with the knowledge of the agreement of sale, and therefore he filed a suit against both the defendants for specific performance of the agreement. The defendants denied the plaintiffs claim: 1st defendant denied the execution of the agreement of sale in favour of the plaintiff, and the 2nd defendant contended that his sale deed had come into existence even prior to the date of the agreement of sale in favour of the plaintiff and that he was a bona fide purchaser. In reply, the plaintiff asserted that the alleged sale deed in favour of the 2nd defendant was got up subsequently and that the same was deliberately ante-dated. The learned Munsiff decreed the suit. The 2nd defendant took that decision in appeal and the learned Subordinate Judge found that an important issue which arose from the pleadings had not been framed by the trial Court and he accordingly framed an issue as follows :-
"Whether the sale deed dated 15-5-1950 executed by the 1st defendant in favour of the 2nd defendant was really executed subsequent to the agreement dated 6-11-1950 executed in favour of the plaintiff and whether the sale deed in favour of the 2nd defendant was deliberately ante-dated with a view to deprive the plaintiff of his rights under the agreement."
(3.)After framing this issue, the learned Subordinate Judge set aside the judgment and decree of the Court below and remanded the suit to the trial Court with a direction to give an opportunity to the parties to adduce evidence on the issue newly framed and dispose of the same afresh according to law. It is against this order that the present appeal is preferred.
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