Karnataka High Court
Mehabubsab Husainsab Tamboli vs Laxmawwa W/O Channappa ... on 21 February, 2022
Bench: R Natarajpresided Byrnj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
M.F.A. NO.102375 OF 2014 (CPC)
BETWEEN:
1. MEHABUBSAB HUSAINSAB TAMBOLI
AGE: 64 YEARS,
OCC: AGRICULTURE
R/O. SHANKARALINGANA ONI,
NARGUND, DIST: GADAG.
2. HUSAINSAB MEHABUBSAB TAMBOLI
AGE: 32 YEARS,
OCC: AGRICULTURE
R/O. SHANKARLINGANA ONI,
NARGUND, DIST: GADAG.
3. BUDANSAB MEHABUBSAB TAMBOLI
AGE: 30 YEARS,
OCC: AGRICULTURE
R/O. SHANKARLINGANA ONI,
NARGUND, DIST: GADAG.
4. GUDUSAB MEHABUBSAB TAMBOLI
AGE: 28 YEARS,
OCC: AGRICULTURE
R/O. SHANKARLINGANA ONI,
NARGUND, DIST: GADAG.
... APPELLANTS
(BY SRI ARUN L. NEELOPANT, ADVOCATE)
AND:
1. LAXMAWWA W/O CHANNAPPA GADDANNAVAR
AGE: 74 YEARS,
OCC: HOUSEHOLD WORK
R/O. SUREBAN, TQ: RAMDURG
DIST: BELGAUM.
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2. KISTAWA W/O. GOVINDAPPA JADAR
AGE: 54 YEARS
OCC: HOUSEHOLD WORK
R/O. S J BUDIHAL
POST: JAKANUR,
TQ: BADAMI, DIST: BAGALKOT.
3. TOPANNA CHANNAPPA
GADDANNAVAR
AGE: 52 YEARS
OCC: AGRICULTURE
R/O. SUREBAN,
TQ: RAMDURG, DIST: BELGAUM.
4. KASHAPPA S/O. CHANNAPPA
GADDANNAVAR
AGE: 50 YEARS
OCC: AGRICULTURE
R/O. SUREBAN,
TQ: RAMDURG
DIST: BELGAUM.
5. GURUNATH CHANNAPPA
GADDANNAVAR
AGE: 48 YEARS
OCC: AGRICULTURE
R/O. SUREBAN,
TQ: RAMDURG
DIST: BELGAUM.
6. RUKMAWA W/O. HANAMANT
HINDINAMANI
AGE: 46 YEARS
OCC: HOUSEHOLD WORK
R/O. YANKANCHI, MANI NAGAR,
KERUR, TQ: BADAMI
NOW AT SUREBAN, TQ: RAMDURG
DIST: BELGAUM.
7. CHANDSAB BUDDASAB
GADDANNAVAR
AGE 84 YEARS
OCC AGRICULTURE
R/O. SUREBAN, TQ RAMDURG
DIST BELGAUM .
(DELETED AS PER ORDER DT. 21.08.2019)
8. GURUPADAPPA BASHETTEPPA
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PATTANSHETTI
AGE: 54 YEARS
OCC: AGRICULTURE
R/O. SANNA HAMPIHOLI
TQ: RAMDURG
DIST: BELGAUM.
... RESPONDENTS
(BY SRI A.S. PATIL, ADVOCATE FOR R1 TO R6;
R7 - DELETED;
SRI B.V. SOMAPUR, ADVOCATE FOR R8)
THIS M.F.A. IS FILED UNDER ORDER XLIII RULE 1(t) OF CPC
PRAYING TO SET ASIDE THE ORDER DATED 17.07.2014 IN CIVIL
MISC. NO. /2010 IN R.A. NO.59/2007 PASSED BY THE SENIOR CIVIL
JUDGE, RAMDURG AND ALLOW THE PETITION FILED BY THE
APPELLANTS UNDER ORDER XLI RULE 15 OF CPC ALONG WITH IA U/S.
5 OF THE LIMITATION ACT IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants have challenged the order dated
17.07.2014 passed by the Senior Civil Judge, Ramdurg by which
an application filed by the appellants under Order XLI Rule 19 of
the Code of Civil Procedure for restoration of R.A. No.59 of 2007
was rejected on the ground of delay.
2. A suit in O.S. No.31 of 1998 was filed by the
predecessor of the respondents No.1 to 6 herein for specific
performance of an agreement of sale dated 22.03.1990. The
said suit was decreed after contest on 22.07.2002. Feeling
aggrieved by the aforesaid judgment and decree, the defendant
No.1 / predecessor of appellants filed R.A. No.17 of 2002 which
was transferred to Fast Track Court and thereafter again re-
transferred to the Senior Civil Judge, Ramdurg and re-numbered
as R.A. No.59 of 2007. The said appeal was dismissed for
default on 13.08.2007. The appellants herein filed an application
under Order XLI Rule 19 of the Code of Civil Procedure for
restoration of the appeal and filed an application for condonation
of delay of nearly three years in filing the application for
restoration of the appeal. The appellant No.3 herein was
examined as P.W.1 who marked documents as Exs.P-1 to P-4.
The Court, not satisfied with the reasons assigned, rejected the
application in terms of the order dated 17.07.2014. Feeling
aggrieved by the aforesaid order, the present appeal is filed.
3. The learned counsel for appellants contended that
when the appeal was filed, initially it was before the Senior Civil
Judge, Ramdurg as R.A. No.17 of 2002. She submitted that
when the appeal was transferred to the Fast Track Court, they
were not aware of the particulars of the appeal. He further
submitted that when the appeal was again transferred to the
Senior Civil Judge, Ramdurg and re-numbered as R.A. No.59 of
2007, the appellants were not notified and therefore they could
not pursue the appeal. She, pleaded that as a result of the
decree she was likely to loose the property and therefore, prayed
that the appeal be allowed.
4. Per contra, the learned counsel for respondents
submitted that the agreement of sale was executed on
22.03.1990 and that after the appeal was dismissed for non-
prosecution, an Execution Petition was filed in E.P. No.11 of 2010
and the decree was put in execution which was followed by
execution of a sale deed in favour of the plaintiff / respondent
herein. He, therefore, submitted that no purpose will be served
in entertaining the request of the appellants herein to re-visit the
decree.
5. The suit in question was filed for a specific
performance and the trial Court had granted a decree in favour
of the plaintiff / respondent herein. The aggrieved defendants
were entitled to question the judgment and decree in an appeal
filed in accordance with Order XLI Rule 1 and 2 read with Section
96 of the Code of Civil Procedure. In the present case, it is
undisputed that the appeal which was initially filed within time
was thereafter transferred to Fast Track Court and again re-
transferred and re-numbered as O.S. No.59 of 2007. It may be
that the appellants were either not notified about such transfer
or that they were not properly advised by their counsel. This
should not result in deprival of right of the appellants to pursue
the appeal filed by them.
6. In that view of the matter, the impugned order
passed by the Court deserves to be interfered with. However,
this cannot be without compensating the plaintiffs/respondents
herein who had spent substantially towards getting the sale deed
executed.
7. In that view of the matter, the appeal is allowed.
The impugned order passed by the Court is set aside and the
appeal in R.A. No.59 of 2007 is restored on the file of the Civil
Judge (Sr. Dn.) Ramdurg who shall now dispose off the appeal in
accordance with law within a period of six months from the date
of receipt of a certified copy of this order. This shall, however,
be subject to appellants paying cost of Rs.5,000/- to respondent
No.1 herein on the next date of hearing before the Appellate
Court. All contentions are left open.
Sd/-
JUDGE
hnm
