The Divisional Manager vs Sri G V Manjunatha
2023 Latest Caselaw 2294 Kant

                                               -1-
                                                         RSA No. 647 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 20TH DAY OF APRIL, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                    REGULAR SECOND APPEAL NO. 647 OF 2018 (DEC/INJ)

                   BETWEEN:

                   1.    THE DIVISIONAL MANAGER
                         ORIENTAL INSURANCE COMPANY LTD.,
                         DIVISIONAL OFFICE, KESHAVAPURA,
                         HUBLI.

                   2.    THE MANAGER
                         ORIENTAL INSURANCE COMPANY LTD.,
                         TILUVALLI COMPLEX, P.B.ROAD,
                         DAVANGERE.
                         REPRESENTED BY ITS
                         REGIONAL MANAGER,
                         THE ORIENTAL INSURANCE CO. LIMITED.,
                         REGIONAL OFFICE,
                         LEO SHOPPING COMPLEX,
Digitally signed         NO.44/45, RESIDENCY ROAD,
by SHARANYA T            BANGALORE-560 025.
Location: HIGH                                                    ...APPELLANTS
COURT OF
KARNATAKA                         (BY SRI P.B. RAJU, ADVOCATE)
                   AND:

                   1.    SRI G.V. MANJUNATHA
                         S/O. LATE SRI G.S.VENKATASWAMY,
                         AGED ABOUT 47 YEARS
                         AGENT, ORIENTAL INSURANCE CO. LTD.,
                         I MAIN, 4TH CROSS, VINOBANAGAR,
                         DAVANGERE.
                                                                 ...RESPONDENT

                                (BY SRI PRASANNA B.R., ADVOCATE)
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                                                   RSA No. 647 of 2018




     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE ORDER DATED 04.02.2015 PASSED ON I.A.NO.1
IN R.A.NO.26/2013 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, DAVANAGERE, REJECTING THE
I.A.NO.1 FILED UNDER ORDER 41, RULE 3-A CPC R/W. SEC.5
OF LIMITATION ACT FOR CD IN FILING AND CLOSING THE
MATTER, FILED AGAINST THE JUDGMENT AND DECREE DATED
03.09.2012 PASSED IN O.S.NO.340/2007 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE, DAVANAGERE.

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

                             JUDGMENT

The appellant, while filing the appeal has filed

I.A.No.1/2018 praying this Court to condone the delay of 1044

days in filing the appeal.

2. Heard the learned counsel for the appellants on

I.A.No.1/2018 for condonation of delay of 1044 days in filing

the appeal.

3. The reason stated in the affidavit accompanying the

application particularly, Para No.8 of the affidavit is that the

plaintiff had instituted Execution Petition No.132/2013 on the

file of the Civil Judge (Jr.Dn.), Davanagere. On receipt of

execution notice, they filed objections before the executing

Court, so as to bring to the notice of the executing Court that

the judgment and decree was not executable. The execution

RSA No. 647 of 2018

petition was filed on 10.04.2013 and their company filed

vakalath on first date of hearing on 29.06.2013 and

immediately on the next date of hearing on 27.07.2013,

objections were filed. Thereafter, the matter was posted for

enquiry under Order 21, Rule 11 of CPC. After several dates of

hearing, finally the matter was posted for enquiry on

07.02.2015. After several adjournments, the orders finally

came to be passed only on 25.01.2018. The execution petition

thus was pending with regard to the issue of maintainability

from April, 2013 to January, 2018. Hence, there was a delay of

1044 days in filing the appeal.

4. Learned counsel for the respondent has filed the

statement of objection contending that the appellants were

having the knowledge of filing of the execution petition in 2013

and disposal of the same in 2018 and there is an inordinate

delay in filing the appeal. The affidavit sworn to by the

appellants is also very clear that they were having the

knowledge of the execution petition filed in the year 2013 and

they were pursuing the matter and also filed the statement of

objections on 27.07.2013 and what prevented them from filing

the appeal is not forthcoming in the affidavit and only after

RSA No. 647 of 2018

contesting the matter in execution petition, they have filed this

second appeal and the averments made in Para No.8 of the

affidavit is self explanatory statement made by the deponent,

in order to suite their convenience and no sufficient grounds

are made out to condone the delay.

5. Learned counsel for the appellants in his arguments

would contend that this Court has to consider the delay of 1044

days in filing the appeal in a lenient way and condone the

same.

6. Having heard the respective counsel and also on

perusal of the material available on record, it is not in dispute

that suit was filed in 2007 and the judgment was passed in

2012 granting the relief as sought in the plaint. As against the

said judgment and decree, appeal is filed in U.R.A.No.6/2013

and an order has been passed on I.A.No.I, wherein there was a

delay of 153 days in filing the appeal and the First Appellate

Court has not accepted the reason and dismissed the

application vide order dated 04.02.2015 and this second appeal

is filed in 2018 and the reason assigned in Para No.8 of the

affidavit is that the appellants were pursuing the matter before

RSA No. 647 of 2018

the executing Court and hence, they could not file the appeal in

time and the said reason cannot be accepted and each day's

delay has to be explained and the same is not explained in the

case on hand when there is a delay of 3 years in filing the

present appeal and no sufficient ground is made out, except

stating that the appellants were pursuing the matter before the

executing Court on the issue of maintainability and the said

reason cannot be accepted to condone the inordinate delay of

1044 days in filing the appeal. Even when the appeal was

dismissed on that day before the First Appellate Court, again

the appeal is filed belatedly.

7. The Apex Court in the judgment in MAJJI

SANNEMMA ALIAS SANYASIRAO V. REDDY SRIDEVI AND

ORS. reported in AIR 2022 SC 332, when the delay of 1011

days was condoned by the High Court in preferring the second

appeal, the Apex Court comes to the conclusion that

explanation given was not satisfactory and each day's delay has

to be explained and when the non-filing of appeal is intentional

and when there was negligence and no sufficient cause is made

out, the same cannot be liberally interpreted if negligence,

inaction or lack of bonafide is attributed to the party.

RSA No. 647 of 2018

8. Having considered the principles laid down in the

judgment, the facts of the case on hand and the reasons

assigned by in the affidavit accompanying the application

particularly, Para No.8 of the affidavit, I do not find any ground

to condone the delay of 1044 days in filing the appeal and no

sufficient cause is shown to condone the same.

Accordingly, I.A.No.1/2018 is dismissed and

consequently, the second appeal is also dismissed.

In view of dismissal of the appeal, I.A.No.2/2018 does

not survive for consideration and the same stands disposed of.

Sd/-

JUDGE

ST