Karnataka High Court
Sangappa S/O. Rangappa Gudagi vs Jyoti D/O. Gadegeppa Gudagi on 6 January, 2022
Bench: Anant Ramanath Hegde
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
R.S.A. No.100121/2014 (PAR/POS)
BETWEEN
1. SANGAPPA S/O. RANGAPPA GUDAGI
AGE: 51 YEARS, OCC: AGRICULTURIST
R/O. NEERALAKERI VILLAGE
TQ: BAGALKOT, PIN 587101
2. YANKAPPA S/O. RANGAPPA GUDAGI
AGE: 49 YEARS, OCC: AGRICULTURIST
R/O. NEERALAKERI VILLAGE
TQ: BAGALKOT, PIN 587101
...APPELLANTS
(BY SRI.MANOJ BIKKANNAVAR, ADVOCATE
FOR SRI.ANAND.R.KOLLI, ADVOCATE)
AND
1. JYOTI D/O. GADEGEPPA GUDAGI
AGE: 23 YEARS, OCC: STUDENT
R/O. KHAJIBUDIHAL TQ: BADAMI
DIST: BAGALKOT, PIN 587101
2. JAYASHREE D/O. GADEGEPPA GUDAGI
AGE: 20 YEARS, R/O. KHAJIBUDIHAL
TQ: BADAMI, DIST: BAGALKOT, PIN 587101
3. RADHA D/O. GADEGEPPA GUDAGI
AGE: 14 YEARS, OCC: STUDENT
SINCE RESPONDENT NO.3 IS MINOR
2
R/BY THEIR NATURAL GUARDIAN
MOTHER RESPONDENT NO.4
R/O. KHAJIBUDIHAL, TQ: BADAMI
DIST: BAGALKOT, PIN 587101
4. MALLAVVA @ NIRMALA W/O. GADEGEPPA
GUDAGI, AGE: 43 YEARS,
OCC: HOUSEHOLD WORK, R/O. KHAJIBUDIHAL,
TQ: BADAMI, PIN 587101
5. SHANKRAVVA W/O. RANGAPPA GUDAGI
AGE: 76 YEARS, OCC: HOUSEHOLD WORK
R/O. NEERALKERI, TQ AND DIST: BAGALKOT
PIN 587101.
6. GADIGEPPA S/O. RANGAPPA GUDAGI
AGE: 49 YEARS, OCC: AGRICULTURE
R/O. NEERALKERI, TQ AND DIST: BAGALKOT
PIN 587101.
7. SHRISHAIL S/O. RANGAPPA GUDAGI
AGE: 46 YEARS, OCC: AGRICULTURE
R/O. NEERALKERI, TQ AND DIST: BAGALKOT
PIN 587101.
8. SHYAVAKKA W/O. TIPPANNA YALLIGUTTI
AGE: 45 YEARS, OCC: HOUSEHOLD WORK
R/O. HALPETH, TQ AND DIST: BAGALKOT
PIN 587101.
...RESPONDENTS
(BY SRI.SABEEL AHMED, ADVOCATE
FOR SRI.A.S.PATIL, ADVOCATE FOR R1-4;
SRI.B.ANWAR BASHA, ADVOCATE FOR R5-8)
THIS APPEAL IS FILED U/S.100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD:21.12.2013 PASSED IN
R.A.NO.105/2011 ON THE FILE OF THE PRINCIPAL DISTRICT
AND SESSIONS JUDGE AT BAGALKOT DISMISSING THE APPEAL
FILED AGAINST THE JUDGMENT AND DECREE DATED
20.12.2008 AND THE DECREE PASSED IN O.S.NO.58/2007 ON
THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN.) BAGALKOT
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
3
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for admission, with
consent of the learned counsel appearing for the parties, it
is taken up for final disposal
2. Defendants Nos.2 and 4 in O.S.No.58/2007 on
the file of I Addl.Senior Civil Judge, Bagalkot having
suffered a decree for partition and separate possession
filed R.A.No.105/2011 on the file of Prl.District and
Sessions Judge, Bagalkot. However, there was delay of 2
years 7 months 24 days in preferring the regular appeal.
An application was filed to condone the delay in filing the
appeal. It appears that the case was repeatedly adjourned
at the instance of appellants for hearing on the application
for condonation of delay. On 26.10.2013 the case was
adjourned on payment of cost of Rs.100/-. The cost was
not paid and the appellate Court has dismissed the
application on the ground that there are no reasons to
condone the delay. Consequently, the appeal is also
dismissed. Hence, the present Second appeal by
defendants-appellants.
3. Heard learned counsel for the appellants and
respondents.
4. Admittedly, the suit is one for partition and
separate possession in respect of the immovable
properties described in schedule 'B'. The suit was decreed
holding that the plaintiffs are entitled to 7/45th share in the
suit properties. Challenging the judgment and decree the
appeal was filed by defendants Nos.2 and 4. Said appeal is
dismissed as application filed for condonation of delay was
rejected by the appellate Court. The right of appeal
conferred under Section 96 of Code of Civil Procedure is a
statutory right. The parties are entitled to challenge the
judgment and decree passed by the trial Court, both on
question of fact and law and the appellate Court is enabled
under the law to reappreciate evidence. Though the
appellants have not made a serious effort to address their
submission on the application seeking condonation of
delay, this Court considering the fact that the subject
matter of the suit is immovable properties, deems it
appropriate to set-aside the impugned order and to remit
the matter before first appellate Court for consideration on
merits in accordance with law.
5. However, considering the fact that there was a
delay of 2 years 7 months 24 days in filing the appeal, the
impugned order is set-aside and delay in filing the appeal
No.105/2011 on the file of Prl.District and Sessions Judge,
Bagalkot is condoned subject to the condition that the
appellants shall deposit Rs.15,000/- before the trial Court
on 07.02.2022 and same shall be paid to the plaintiffs.
6. It is needless to say that if the cost of
Rs.15,000/- is not paid by the present appellants on or
before 07.02.2022 the order dated 21.12.2013 passed by
the Prl.District and Sessions Judge, Bagalkot dismissing
the application for condonation of delay in
R.A.No.105/2011 and consequent order dismissing the
appeal stands restored.
7. It is also made clear that the parties before
proceeding shall appear before the first appellate Court on
07.02.2022 without waiting any notice from the appellate
Court.
8. Registry shall immediately transmit the records
to the first appellate Court. It is also made clear that no
opinion is expressed on the merits of the appeal.
9. In view of dismissal of the main appeal,
pending applications, if any, do not survive for
consideration and accordingly, they are disposed of.
SD/-
JUDGE
am
