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APPELLANT(S)
RESPONDENT(S)
JUDGMENT
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2.
The
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given as advance, the expenses of the balance of Rs. 5,000/which was retained by N.K. Subbaiah Shetty and Rattanhalli
Ramappa has been accounted for and thus only Rs. 5000/is the actual amount of advance.
4.
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rent of Rs. 250/- for himself which was in reality interest for
sum of Rs. 5000/- given as advance, but which had been
recovered by N.K. Subbaiah Shetty during the period the
lease was subsisting in his favour. Besides nothing was due
to be paid to N.K. Subbaiah Shetty as it was voluntary
surrender to ease evidence by the so-called sub-lease. The
return of Rs. 250/- per month which could only be
demanded as interest on the sum of Rs. 5000/- advanced
was usurious Loans Act in force in Mysore.
The so called
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5.
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of
the
Munisiff,
Srirangapatna,
and
getting
refusal
This again
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vitiated and void as only half share was attached, but against
the attachment itself the full properties including the
properties which were not subject matter of the attachment
were brought to sale and purchased.
6.
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get the sale held and confirmed including the half share of
this first plaintiff, and the first plaintiff, therefore, got filed
Misc.No.49 of 1962 to set aside the sale on the ground of
fraud.
The first
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7.
attorney
holder
of
both
2nd
defendant
and
N.K.
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8.
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The
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C.C. 1758/67 and C.C. 370/68 before the Special First Class
Magistrate, Srirangapatna and in the said cases the plaintiff
and other accused were also acquitted. The finding is that
the so called delivery taken by the 1st defendant in the civil
court
is
only
paper
delivery
and
not
amount
to
for
of
actual
the
possession
judgment
before
being
delivered
Special
1 st
in
Class
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9.
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10.
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11.
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Finally, the trial court held that since issue nos. 2 to 4 have
been decided against the plaintiffs, the relief for specific
performance cannot be granted.
12.
High
Court
being
the
first
appellate
court,
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13.
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14.
15.
16.
High
Court
as
being
erroneous
in
law
and
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in
execution
case
no.
216
of
1961
the
challenged
respondents.
in
appeal
before
the
High
Court
by
the
Learned senior
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17.
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that the only issue that was to be decided by the High Court
was as to whether there was a binding agreement executed by
the defendants-appellants. Learned senior counsel submitted
that the High Court after considering the evidence of the scribe
and other witnesses and also considering the evidence
produced in a criminal proceeding and the finding recorded in
the said proceeding has come to the right conclusion that the
agreement was executed by the defendants. The High Court
further came to the finding that payment of consideration
amount to the defendants has been proved and that the
signature on the agreement was admitted by Nanjappa, who
was a signatory of the agreement.
18.
both the trial court and the High Court while passing a decree
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19.
20.
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21.
judicial
discretion
to
grant
decree
for
Specific
22.
Pandey and others, 1995 Supp (4) SCC 542, this Court while
considering Section 20 of the Specific Relief Act held as under:4. Though the decree for specific performance is a
discretionary power, yet the court is not bound to
grant such a relief merely because it is lawful to do so;
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23.
24.
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25.
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26.
27.
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28.
be
enforced,
the
Court
had
to
consider
various
which
was
denied
and
disputed.
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29.
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30.
31.
J.
(M.Y. Eqbal)
J.
(C. Nagappan)
New Delhi
September 02, 2015
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