Karnataka High Court
Basangoud S/O Shankargouda Patil Since ... vs Veerangouda S/O Fakkirgouda Patil ... on 27 October, 2025
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NC: 2025:KHC-D:14310
WP No. 102033 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 27TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 102033 OF 2025 (GM-CPC)
BETWEEN:
BASANGOUD S/O SHANKARGOUDA PATIL,
SINCE DECEASED BY HIS LR'S.,
1. RAYANGOUDA S/O SHANKARGOUDA PATIL,
AGE. 56 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVLUR ROAD,
DHARWAD-580 001.
2. SADANANDGOUDA S/O SHANKARGOUDA PATIL,
AGE. 53 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVLUR ROAD,
DHARWAD-580 001.
3. NINGANGOUDA S/O SHANKARGOUDA PATIL,
Digitally signed by
CHANDRASHEKAR
AGE. 81 YEARS, OCC. AGRICULTURE,
LAXMAN KATTIMANI
Location: HIGH
COURT OF
R/O. HEBBALLI AGASI, NAVLUR ROAD,
KARNATAKA
DHARWAD BENCH
DHARWAD-580 001.
KENCHANGOUDA S/O SHANKARGOUDA PATIL,
SINCE DECEASED BY HIS LR'S.,
4. SMT. BASAVVA W/O KENCHANGOUDA PATIL,
AGE. 76 YEARS, OCC. HOUSE WIFE,
R/O. TADAKOD ONI, RAVIVAR PETE,
DHARWAD-580 001.
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5. SHIVANGOUDA @ BABU S/O KENCHNGOUDA PATIL,
AGE. 59 YEARS, OCC. BUSINESS,
R/O. TADAKOD ONI, RAVIVAR PETE,
DHARWAD-580 001.
6. NINGANGOUDA S/O KENCHNGOUDA PATIL,
AGE. 55 YEARS, OCC. BUSINESS,
R/O. TADAKOD ONI, RAVIVAR PETE,
DHARWAD-580 001.
7. SMT. RENUKA @ BABY W/O SHANKARGOUDA PATIL,
AGE. 51 YEARS, OCC. HOUSE WIFE,
C/O. NAGANGOUDA SHANKARGOUDA PATIL,
DODD ONI, NAGSHETTIKOPPA,
HUBBALLI-580 023.
8. MANJUNATH S/O NINGANGOUDA PATIL,
AGE. 43 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVALURU ROAD,
DHARWAD-580 001.
9. SHANKARGOUDA S/O NINGANGOUDA PATIL,
AGE. 41 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVALURU ROAD,
DHARWAD-580 001.
10. BASANGOUDA S/O NINGANGOUDA PATIL,
AGE. 39 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVALURU ROAD,
DHARWAD-580 001.
... PETITIONERS
(BY SRI. V.M. SHEELVANT, ADVOCATE)
AND:
VEERANGOUDA S/O FAKKIRGOUDA PATIL,
SINCE DECEASED BY HIS LR'S.,
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WP No. 102033 of 2025
HC-KAR
1. VEERESHGOUDA GURANGOUDA PATIL,
AGE. 40 YEARS, OCC. AGRICULTURE,
R/O. HAROBELAVADI,
TQ. AND DIST. DHARWAD-580 001.
2. SUNIL @ SUNILGOUDA S/O BASANGOUDA PATIL,
AGE. 35 YEARS, OCC. AGRICULTURE,
R/O. HAROBELAVADI,
TQ. AND DIST. DHARWAD-580 001.
3. GURUANGOUDA S/O SHIVANGOUDA PATIL,
AGE. 61 YEARS, OCC. AGRICULTURE,
R/O. HAROBALAVADI,
TQ. AND DIST. DHARWAD-580 001.
4. SMT. SUVARANA W/O DAVANGOUDA PATIL,
AGE. 53 YEARS, OCC. HOUSE WIFE,
C/O. HIREMATH (KSRTC), CHANDRABIMB,
VINAYAK NAGAR, 3RD CROSS, SAI NAGAR,
DHARWAD-580 001.
5. UMESHGOUDA S/O DAVANGOUDA PATIL,
AGE. 34 YEARS, OCC. STUDENT,
C/O. HIREMATH (KSRTC),
CHANDRABIMB, VINAYAK NAGAR,
3RD CROSS, SAI NAGAR, DHARWAD-580 001.
6. RENUKA S/O DAVANGOUDA PATIL,
AGE. 35 YEARS, OCC. STUDENT,
C/O. HIREMATH (KSRTC),
CHANDRABIMB, VINAYAK NAGAR,
3RD CROSS, SAI NAGAR, DHARWAD-580 001.
7. RAMESHGOUDA S/O DAVANGOUDA PATIL,
AGE. 33 YEARS, OCC. STUDENT,
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WP No. 102033 of 2025
HC-KAR
C/O. HIREMATH (KSRTC), CHANDRABIMB,
VINAYAK NAGAR, 3RD CROSS, SAI NAGAR,
DHARWAD-580 001.
8. AKKAVVA GURANGOUDA PATIL,
AGE. 49 YEARS, OCC. HOUSE WIFE,
C/O. KUMAR KAGINALLI, SHIVAGANGA NAGAR,
KAMATHI PLOT, NEAR MURGAMATH MAIDHAN,
DHARWAD-580 001.
9. SUMAKKA W/O BASANGOUDA PATIL,
AGE. 45 YEARS, OCC. HOUSE WIFE,
C/O. KUMAR KAGINALLI, SHIVAGANGA NAGAR,
KAMATHI PLOT, NEAR MURGAMATH MAIDHAN,
DHARWAD-580 001.
10. BASANGOUDA S/O FAKKIRGOUDA PATIL,
AGE. 88 YEARS, OCC. HOUSE WIFE,
C/O. KASABA ONI, SHUKRAVAR PETH,
DHARWAD-580 001.
... RESPONDENTS
(BY SRI. ARUN L. NEELOPANT, ADVOCATE FOR R1 AND R2;
NOTICE TO RESPONDENTS 3 TO 10 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION AND QUASH THE ORDER DATED
15/02/2025 ON I.A. NO.16 PASSED BY THE 1ST ADDITIONAL
SENIOR CIVIL JUDGE AND CJM DHARWAD IN O.S. NO.567/2014
PRODUCED AT ANNEXURE-G THE INTEREST OF JUSTICE AND
EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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WP No. 102033 of 2025
HC-KAR
ORAL ORDER
(PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) This petition is filed assailing the order permitting the plaintiff to withdraw the suit with liberty to file an application as advised in law.
2. The operative portion of the order reads as under:
"Application filed by the plaintiff U/O-XXIII Rule-1(3) R/w Sec.151 of CPC is hereby allowed.
Consequently, suit of the plaintiff is hereby dismissed as withdrawn.
It is made clear that plaintiff is at liberty to file appropriate application as prayed for within the statutory frame work.
Accordingly, the case is disposed off."
3. It is noticed that the suit in O.S.No.567/2014 on the file of I Additional Senior Civil Judge, Dharwad is filed challenging the compromise decree passed in O.S.No.41/2003. The plaintiff in O.S.No.567/2014 is a party to the suit in O.S.No.41/2003.
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4. Application is filed to withdraw the suit on the premise that the suit challenging the compromise decree is not maintainable and sought liberty to file an application before the very Court, which passed the compromise decree.
5. Learned counsel for the petitioners would urge that the Court has no jurisdiction to grant liberty to file the application as Order XXIII Rule 1 of the Code of Civil Procedure ('Code' for short) does not use the expression 'application'. It uses the expression 'the suit'.
6. In addition, he would also urge that the suit can be permitted to be withdrawn with liberty to file a suit, provided the first suit should fail for formal defect and the plaintiff who sought permission to file an application has not specified as to what is the formal defect. He would also submit that the Court had no jurisdiction to entertain the suit as such, the suit was not maintainable and the fact that the suit is not maintainable cannot be treated as a formal defect.
7. In support of his contention, he placed reliance on the judgment of Apex Court in K.S.Bhoopathy and others v. -7-
NC: 2025:KHC-D:14310 WP No. 102033 of 2025 HC-KAR Kokila and others1 and also on the judgment of Orissa High Court in Khatuna and another v. Ramsewak Kashinath and another2 and also the judgment of Andhra Pradesh High Court in Somalraju v. Samanthu Sivaji Ganesh and another3.
8. Learned counsel appearing for the respondents would urge that the suit to challenge the compromise decree is not maintainable as the plaintiffs in the said suit were also the parties to the compromise decree. The remedy for the plaintiff was to file an application before the same Court, which passed the compromise decree. However without noticing this aspect, the suit was inadvertently filed and that was pursued. After realizing that the suit is not maintainable, application is filed to withdraw the suit with liberty to file fresh suit. Thus, he would urge that the Trial Court is justified in granting the liberty, filing the application as the suit was not maintainable before the Trial Court. 1 (2000) 5 SCC 458 2 AIR 1986 Ori 1 3 AIR 2009 AP 12 -8- NC: 2025:KHC-D:14310 WP No. 102033 of 2025 HC-KAR
9. This Court has considered the contentions raised at the bar and perused the records.
10. The fact that the earlier decree was a compromise decree passed by the competent Civil Court is not in dispute. The Code prohibits a separate suit to challenge the compromise decree. It is well settled position of law that the person agreed by the compromise decree has to file an application to recall the said decree or to set aside the said decree. This being the position, the plaintiffs who filed the suit challenging the compromise decree moved an application seeking leave of the Court to withdraw the suit and to file an application.
11. Though the learned counsel Sri V.M.Sheelvant would refer to the judgment of the Apex Court in K.S. Bhoopathy supra, it is noticed from the said judgment that the Apex Court has held that the application seeking withdrawal of suit to file a separate suit on the original cause of action has to be considered cautiously and the application cannot be allowed and liberty cannot be granted in a routine -9- NC: 2025:KHC-D:14310 WP No. 102033 of 2025 HC-KAR manner. Said judgment does not deal with the fact situation obtained in the present case.
12. The judgment of the Andhra Pradesh High Court and Orissa High Court referred to supra have held that the liberty cannot be granted to file an application and liberty can only be granted to file a suit as the word 'application' is not found in Order XXIII Rule 1 of Code. The Orissa High Court has also held that the fact that the suit is not maintainable is not a formal defect.
13. It is required to be noticed that Order XXIII Rule 2 of Code does not revive the limitation even in case the liberty is granted to the plaintiff to file a fresh suit.
14. It is no doubt true that the word application is not found in Order XXIII Rule 1(3) of Code and on a plain reading, it would indicate that the permission can be granted only to file a fresh suit. However, it is required to be noticed that the plaintiff cannot file a fresh suit as the suit itself is barred. Hence, the remedy for the plaintiff is only to file an application.
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15. Assuming that the plaintiff had withdrawn the suit without seeking the liberty, still the plaintiff can file an application to set aside the decree and he has to make out the reason as to why the decree has to be set aside. It appears to be on safer side, the plaintiff had filed an application seeking liberty to file an application on the same cause of action.
16. This Court is of the view that since the suit itself was not maintainable, the plaintiff is justified in not pursuing the suit, which he has filed to challenge the compromise decree. The remedy for the plaintiff is to file an application and same is now granted by the Trial Court.
17. It is to be observed that merely because the liberty is granted to the plaintiff; it does not mean that the plaintiff has made out a case to set aside the decree. It also does not mean that the limitation, if any, for the plaintiff to challenge the compromise decree is saved or condoned by the Trial Court.
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18. The Order XXIII Rule 2 of Code has to be borne in mind while considering the application, if any, filed by the respondent to set aside the compromise decree.
19. Under these circumstances, this Court does not find any reason to set aside the order.
20. It is submitted that the application is already filed. Same shall be considered keeping in mind the observations made in this case.
21. Writ petition is disposed of.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE CLK CT:BCK LIST NO.: 1 SL NO.: 46