Karnataka High Court
Sri Appaji vs Smt Honnamma on 21 August, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:29646
RSA No. 236 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 236 OF 2022
BETWEEN:
1. SRI APPAJI
S/O. LATE SRI PAVADAIAH
AGED ABOUT 47 YEARS,
2. SRI.PRKASH
S/O. LATE SRI PAVADAIAH
AGED ABOUT 45 YEARS,
3. SRI PUTTASWAMY
S/O. LATE SRI PAVADAIAH
SINCE DEAD BY HIS LRS
(a) SMT. LAVANYA,
W/O. LATE SRI PUTTASWAMY
AGED ABOUT 34 YEARS,
Digitally signed (b) MASTER KHUSAL B.P.,
by SHARANYA T S/O. LATE SRI PUTTASWAMY
Location: HIGH AGED ABOUT 17 YEARS,
COURT OF
KARNATAKA
(c) KUMARI SANJANA B.P.
D/O. LATE SRI PUTTASWAMY
AGED ABOUT 14 YEARS,
REPRESENTED BY APPELLANT NO.3(a)
MOTHER NATURAL GUARDIAN.
4. SRI SURESH
S/O. LATE SRI PAVADAIAH
AGED ABOUT 41 YEARS,
-2-
NC: 2023:KHC:29646
RSA No. 236 of 2022
5. SMT.B.P.NAGARATHNAMMA
D/O. LAT SRI PAVADAIAH
AGED ABOUT 43 YEARS
ALL ARE RESIDENTS OF
BELTHUR VILLAGE,
KASABA HOBLI,
MALAVALI TALUK
MANDYA DISTRICT-571 421.
...APPELLANTS
(BY SRI MAHESH B.J., ADVOCATE)
AND:
1. SMT. HONNAMMA
D/O. LATE SRI BADAIAH
W/O. SRI SIDDAIAH
AGED ABOUT 70 YEARS,
2. SRI.S.MURALIDHAR
S/O. SRI SIDDAIAH
AGED ABOUT 45 YEARS,
RESPONDENTS NO.2 AND 3 ARE
RESIDING AT NO.31/1,
VASANTHAPPA BADAVANE,
5TH MAIN, 2ND CROSS,
GANGANAGARA,
BANGALORE-32.
3. SRI K.KEMPEGOWDA
S/O. SRI KEMPEGOWDA
AGED ABOUT 66 YEARS,
R/O. YATHAMBADI VILLAGE,
MALAVALLI TALUK-571 421.
...RESPONDENTS
(BY SMT. SUNITHA H. SINGH, ADVOCATE FOR R1 & R2;
SRI PATEL D. KAREGOWDA, ADVOCATE FOR R3)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.06.2016 PASSED IN
-3-
NC: 2023:KHC:29646
RSA No. 236 of 2022
RA NO.172/2011 ON THE FILE OF THE I ADDITIONAL DISTRICT
JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 13.07.2011 PASSED IN
OS NO.237/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, MALAVALLI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellants counsel on IA No.1/2022 where
there is a delay of 1477 days in filing the application to
condone the delay and in support of the application, affidavit is
sworn to by the first appellant in the second appeal and he has
stated that all of them are hailed from rural area, not having
much education or knowledge about the legal proceedings and
after entrustment of the first appeal to their advocate they
were not able to follow the same and dismissal of appeal came
to know in the year 2017 and due to illness of their father who
was suffering from cancer could not be able to file an appeal
and he died on 13.1.2019 and thereafter, his brother also died
on 12.9.2021 and hence delay has to be condoned.
2. The counsel for the respondents would submit that the
first appellant who is a clerk working in Bangalore as advocate
clerk and he cannot contend that he was not having any
NC: 2023:KHC:29646
RSA No. 236 of 2022
knowledge about filing of an appeal and also counsel brought to
notice of this Court that earlier suit was filed and preliminary
decree was passed and thereafter final decree proceedings was
initiated in the year 1989 and father was also party to the said
compromise and thereafter mutation was also entered in
respect of the properties and properties were also sold and the
suit was filed in the year 2006, even though there was a decree
in the year 1989 i.e. final decree. The counsel also would
vehemently contend that they cannot file a fresh suit and they
can execute the decree if it is not executed and also appeal was
dismissed in the year 2016 itself and delay has not been
properly explained and there is a delay of almost 6 & 1/2 years
i.e. 1477 days and the same has not been properly explained
and the reasons given are also not satisfactory and the same
has to be dismissed on the ground of delay itself.
3. In reply to the arguments, counsel appearing for the
appellants would submit that these appellants have not sold
any property subsequent to the FDP and the property was sold
by the respondent in favour of respondent No.3, but these
appellants have not acted upon.
NC: 2023:KHC:29646
RSA No. 236 of 2022
4. Having heard the appellants counsel and also the
counsel appearing for the respondents on delay is concerned
and the reasons assigned in the application is that they are
rustic villagers and not having the legal knowledge and the fact
that the first appellant who has sworn to affidavit has not
denied the fact that he is working in the office of advocate in
Bangalore and also the affidavit clearly discloses that they
came to know about dismissal of the appeal in 2017 itself, but
reason assigned that father was suffering from cancer and he
also died on 13.1.2019 is also not in dispute and the other
reason given that brother also passed away on 12.9.2021 and
having considered the fact that the appellants were having the
knowledge of dismissal of suit in 2017 itself, even though
father is suffering from cancer, what prevented in filing the
appeal, nothing is stated in affidavit and bald affidavit is filed to
condone the delay of 1477 days. The appellants have not
explained each day delay in filing the appeal. When such being
the case, the reasons stated in the application and the reasons
assigned in the application is also not satisfactory and almost
after lapse of 6 & ½ years of dismissal of the appeal, the
present appeal is filed and having knowledge about dismissal of
NC: 2023:KHC:29646
RSA No. 236 of 2022
the appeal in 2017 itself, did not file the appeal immediately
and the appeal was filed in February, 2022 and hence,
inordinate delay in filing the appeal and the same is not
satisfactorily explained by the appellants. Hence, I do not find
any ground to condone the delay of 1477 days in filing the
appeal.
5. Hence, I.A.No.1/2022 is rejected. Consequently, the
appeal is also dismissed.
Sd/-
JUDGE
AP
