Smt. Annapuran W/O Ashok Konnur vs Smt. Shankuntala W/O Ishwar ...
2022 Latest Caselaw 695 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 14TH DAY OF JANUARY 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                    CRP NO.100063 OF 2021
BETWEEN

1.     SMT. ANNAPURAN W/O ASHOK KONNUR,
       AGE. 51 YEARS, OCC. AGRICULTURIST,
       R/O. NEAR KANNADA SCHOOL,
       MARADISHIVAPUR,
       TQ. GOKAK, DIST. BELAGAVI - 591233.

2.     SHRIDHAR S/O ASHOK KONNUR
       AGE. 23 YEARS, OCC. AGRICULTURIST,
       R/O. MARADISHIVAPUR, TQ. GOKAK,
       DIST. BELAGAVI - 591233.
                                                ...PETITIONERS
(BY SRI. MAHESH WODEYAR, ADVOCATE)

AND:
1.     SMT. SHANKUNTALA W/O ISHWAR JAGANUR
       AGE. 46 YEARS, OCC. HOUSEHOLD,
       R/O. HUNSHYAL P G , TQ. GOKAK,
       NOW R/O C/O R G NAIK, TEACHER,
       NEAR BOMBAY CHAWL,
       NEAR SRIRANGA KIRANA STORE, GOKAK,
       DIST. BELAGAVI - 591307.

2.     MANJULA D/O INSHWAR JAGANUR
       AGE. 30 YEARS, OCC. HOUSEHOLD,
       R/O HUNSHYAL P G , TQ. GOKAK,
       NOW R/O C/O R G NAIK, TEACHER,
       NEAR BOMBAY CHAWL,
       NEAR SRIRANGA KIRANA STORE, GOKAK,
       DIST. BELAGAVI - 591307.
                              2




3.   AKSHAY S/O ISHWAR JAGANUR
     AGE. 27 YEARS, OCC. STUDENT,
     R/O. HUNSHYAL P G , TQ. GOKAK,
     NOW R/O C/O. R G NAIK, TEACHER,
     NEAR BOMBAY CHAWL,
     NEAR SRIRANGA KIRANA STORE, GOKAK,
     DIST. BELAGAVI - 591307.

4.   ABHISHEK S/O UISHWAR JAGANUR
     AGE. 25 YEARS, OCC. STUDENT,
     R/O HUNSHYAL P G , TQ. GOKAK,
     NOW R/O C/O R G NAIK, TEACHER,
     NEAR BOMBAY CHAWL,
     NEAR SRIRANGA KIRANA STORE, GOKAK,
     DIST. BELAGAVI - 591307.

5.   SMT. ANITA W/O SANTOSH HOSAKOTI
     AGE 30 YEARS, OCC. HOUSEHOLD,
     R/O C.O. SANTOSH D HOSAKOTI,
     SHRI. VEERABHADRESHWAR NILAYA,
     BHARAT NAGAR,
     NEAR MALLAPUR LAST SHOP,
     DHARWAD- 580008.

6.   SMT. VEENA W/O MALLAPPA DAMBALI
     AGE 27 YEARS, OCC. HOUSEHOLD,
     R/O C.O VILAS,
     S. NO. 208/2, RAHUL PARK,
     TUKARAM NAGAR, BHOSARI,
     PUNE- 411039,
     STATE OF MAHARASTRA.

7.   SASHIKUMAR S/O ASHOK KONNUR
     AGE. 24 YEARS, OCC. PVT. SERVICE,
     R/O. SHARVAN KUMAR B PATIL, PLOT NO. B1,
     YASH SAMRUDDHI SOCIETY,
     NEXT TO PRABHAT PRINTING PRESS,
     DHAYARUI, PUNE - 411041,
     STATE OF MAHARASTRA
                                            ...RESPONDENTS
(BY SRI. SHRIDHAR HIREMATH, ADV., FOR C/R1)
                                 3




      THIS CRP IS FILED UNDER SECTION 115 OF CPC, PRAYING
TO SET ASIDE THE ORDER DATED 11.06.2021 PASSED BY THE
PRINCIPAL   SENIOR    CIVIL   JUDGE,   GOKAK    ON   I.A.NO.1   IN
R.A.NO.26/2020 AND CONSEQUENTLY ALLOW THE I.A.NO.1 AND
RESTORE R.A.NO.26/2020 BEFORE THE PRINCIPAL SENIOR CIVIL
JUDGE, GOKAK IN THE INTEREST OF JUSTICE AND EQUITY.


      THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

This captioned revision petition is filed by the petitioner,

who was the appellant before the Lower Appellate Court,

feeling being aggrieved by the order passed by the Lower

Appellate Court rejecting the application in I.A.No.1 filed

under Section 5 of the Limitation Act seeking condonation of

delay, which necessarily pre-supposes that the appeal also

was dismissed on account of delay in filing the appeal. Mainly

because Appellate Court has not drawn a decree, that would

not give a right to the present petitioner to invoke Section 115

of the CPC. The Civil Revision Petition is also not maintainable

because if petitioner succeeds before this Court and civil

revision petition is allowed it would revive the appeal and

would not conclude the proceedings. Even on that count, the

civil revision petition is not maintainable. Remedy, if any, to

prefer an appeal is provided under the Civil Procedure Code.

The said issue has been answered by the Hon'ble Apex Court

in the case of Shyam Sundar Sarma vs Pannalal Jaiswal

And Others, reported in AIR 2005 SUPREME COURT 226,

wherein the Hon'ble Apex Court was of the view that

an appeal filed along with an application for condoning the

delay in filing the appeal when dismissed on the refusal to

condone the delay, is nevertheless a decision in the appeal.

The principles laid down by the Hon'ble Apex Court are

squarely applicable to the case on hand. Therefore, Civil

Revision Petition is dismissed reserving liberty to the

petitioner to seek appropriate remedy as provided under the

Civil Procedure Code. In the event petitioner seeks remedy

within two weeks from the date of receipt of certified copy of

this order, he shall be extended with the benefit under Section

14 of the Limitation Act.

Sd/-

JUDGE YAN