Saroj V Kilpady vs M Narayana
2021 Latest Caselaw 1340 Kant

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          IN THE HIGH COURT OF KARNATAKA
                   AT BENGALURU

      DATED THIS THE 22ND DAY OF JANUARY 2021

                        BEFORE

     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

           REVIEW PETITION NO.218/2019
                        IN
        REGULAR SECOND APPEAL NO.329/2001

BETWEEN:

1.    SAROJ V. KILPADY
      WIFE OF SRI VIDYADHAR M KILPADY
      AGED 69 YEARS
      R/AT: 2/25, TALMAKAWADI,
      TARDEE ROAD,
      MUMBAI - 400 007.

      PRESENTLY RESIDING AT
      NO.22, SATYAM
      LINKING ROAD, KHAR (W),
      MUMBAI-400 052.

2.    SHYAMALA K. YEDERY
      AGED 67 YEARS
      R/AT: 2/25, TALMAKAWADI,
      TARDEE ROAD,
      MUMBAI - 400 007.

      PRESENTLY RESIDING AT
      NO.H.NO.5/101, TEMPLE ROAD,
      KASBA VILLAGE
      VITTLA-574 243.             ... PETITIONERS

(BY SRI C.G. GOPALASWAMY, ADVOCATE FOR
    SRI S.V. BHAT, ADVOCATE)
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AND:

1.     M. NARAYANA
       SON OF SRI KUNTHAPPA
       RESIDING AT VITTLA
       KASBA VILALGE OF
       BANTWAL TALUK
       POST VITTAL - 574 243.

2.     SMT M. SHARADA
       WIFE OF M. NARAYANA
       RESIDING AT VITTLA
       KASBA VILLAGE OF
       BANTWAL TALUK
       POST VITTAL - 574 243.

3.     SURESH PAI
       SON OF SRI GOPALKRISHNA PAI
       RESIDING AT TEMPLE ROAD,
       VITTLA
       KASBA VILLAGE OF
       BANTWAL TALUK,
       POST VITTLA - 574 243.

       PRESENTLY RESIDING AT
       GROCERS SHOP,
       OPP. POST OFFICE
       VITTLA - 574 243.             ... RESPONDENTS

(BY SRI. R.R. DESAI, ADVOCATE FOR R3;
R1 & R2 - NOTICE HELD SUFFICIENT V/O
DATED 04.01.2021)

                            *****

     THIS REVIEW PETITION IS FILED UNDER ORDER XLVII
RULE 1 R/W SECTION 114 OF CPC, 1908, PRAYING TO (A) CALL
FOR THE RECORDS OF RSA NO.329/2001 OF THIS HON'BLE
COURT    (B) REVIEW   THE   ORDER/JUDGMENT     IN    RSA
NO.329/2001 DATED 16.07.2007 BY ADDING THE FOLLOWING
AT THE END OF THE OPERATIVE PORTION OF THE ORDER: "THE
3RD RESPONDENT IS ALSO DIRECTED TO PAY RS.200/- PER
MONTH AS MESNE PROFIT FROM THE DATE OF SUIT TILL THE
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DATE OF DELIVERY OF POSSESSION OF THE A SCHEDULE
PROPERTIES TO THE APPELLANT" (C) PASS SUCH OTHER ORDER
OR ORDERS AS THIS HON'BLE COURT DEEMS FIT, IN THE
CIRCUMSTANCES OF THE CASE.

     THIS REVIEW PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The present review petition has been filed by the

plaintiffs in O.S.No.145/1992 seeking for review of the

judgment in RSA 329/2001 dated 16.07.2007. By virtue of

the prayer sought for in the review petition, petitioners

have sought for review of the judgment so as to fasten

liability on the third defendant who is the third respondent

in the Regular Second Appeal, to pay Rs.200/- per month as

mesne profit from the date of the suit till delivery of

possession of the 'A' schedule property to the appellant.

2. Sri.C.G.Gopalaswamy for Sri.S.V.Bhat, learned

counsel appearing on behalf of the petitioners has

submitted that as per the judgment passed by the court of

first instance in O.S.No.145/1992 though at Para 21 there is

a clear finding that defendant nos.1 to 3 are liable to pay

mesne profit at Rs.200/- per month from the date of the

suit till delivery of possession of the 'A' schedule property,

in the operative portion of the judgment, it is mentioned

that only defendant nos.1 and 2 are directed to pay mesne

profit at Rs.200/- per month. Hence, it is submitted that

there is an apparent error on the face of the record as no

liability has been fastened on defendant no.3 and

accordingly grounds are made out for review of the

judgment.

3. I.A.-1/2019 has been filed seeking condonation of

delay of 4330 days in fling the review petition. The said

application has been objected to by the respondents.

4. Insofar as the application for condonation of delay

is concerned, it ought to be noted that the judgment and

decree in O.S.No.145/1992 was passed on 16.08.1996.

Though the said order was the subject matter in

R.A.170/1996 and also came up before this court in RSA

No.329/2001, the said error as noticed by the petitioners

herein was not sought to be rectified and the regular second

appeal No.329/2001 was disposed of on 16.07.2007. Even

if the say of the petitioners as regards filing of

Miscellaneous Petition is to be taken note of, which was filed

seeking amendment of the judgment and decree on

19.10.2016, it is noticed that miscellaneous proceedings

were initiated in the year 2016, almost nine years after the

disposal of the second appeal.

5. Even otherwise, the direction for recovery of

mesne profits as regards defendant nos.1 and 2 provides

recovery of amount from defendant no.1 and 2 including

whole of decreetal amount and in light of such a direction

the petitioners right for recovery is intact. No grounds are

made out to condone the inordinate delay while noticing

that the judgment of the court of first instance was on

16.08.1996 and the present petition has been filed in the

year 2019 which is again a few months short of 12 years

from the disposal of RSA 329/2001. The explanation as

regards to delay cannot be accepted and no sufficient cause

is made out. It is appropriate that stale claims ought to be

buried rather than resurrected.

5. Accordingly, I.A.-1/2019 for condonation of delay

is rejected. So also, review petition is also dismissed.

Sd/-

JUDGE

Np/-