Karnataka High Court
Smt.Suma vs Manjunatha on 21 August, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:29677
MFA No. 1742 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 1742 OF 2013(CPC)
BETWEEN:
SMT.SUMA
AGED 40 YARS
D/O LATE PUTTAPPA
R/AT NO. 54, 1ST FLOOR
LIG, 1ST STAGE, KHB COLONY
BASAVESWARA NAGARA
OPPOSITE TO SHIVANANDA STORE
BANGALORE-78.
...APPELLANT
(BY SRI. VIVEK S REDDY, SENIOR ADVOCATE FOR
SRI. K N SUBBA REDDY., ADVOCATE)
AND:
1. MANJUNATHA
Digitally signed AGED 47 YEARS
by
DHANALAKSHMI 2. NEETHRAVATHI
MURTHY
Location: High
AGED 42 YEARS
Court of W/O MANJUNATHA
Karnataka
R1 & R2 ARE R/AT RAGHU NIVASA
CHITRADURGA TOWN
CHITRADURG-577101.
3. PUTTAMMA
AGED 64 YEARS
W/O LATE PUTTAPPA
R/AT C/O LATE D T ANJANAPPA
MEDEHALLY ROAD
-2-
NC: 2023:KHC:29677
MFA No. 1742 of 2013
CHITRADURGA TOWN
CHITRADURGA-577101
...RESPONDENTS
(BY SRI. MANJUNATH G KANDEKAR, ADVOCATE FOR R1 & R2:
NOTICE TO R3 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43, RULE 1 (d) OF
CPC, AGAINST THE ORDER DATED:16.1.2013 PASSED IN
MISC.NO.3/2011 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, CJM, CHITRADURGA, DISMISSING THE PETITION
FILED U/O 9, RULE 13, R/W SEC.151 OF CPC TO SET ASIDE
THE JUDGMENT AND DECREE IN FDP 12/2002 IS HEREBY
DISMISSED.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Order 43 Rule 1(d) of the
Civil Procedure Code by the judgment debtor challenging
the order dated 16.01.2013, whereby the application filed
by the appellant herein for condonation of delay in filing
Misc.No.3/2011 has been rejected and consequently,
Misc.No.3/2011 is also dismissed.
2. The brief facts of the case are that the decree-
holder has filed FDP No.12/2002 seeking passing of the
final decree pursuant to the preliminary decree passed in
O.S.No.159/1993. During the pendency, father of the
appellant herein, i.e, plaintiff in O.S.No.159/1993 died and
NC: 2023:KHC:29677
MFA No. 1742 of 2013
respondent No.3 herein has come on record as legatee.
The appellant herein, inspite of service of notice was not
represented and she has been placed ex-parte. FDP
No.12/2002 has been allowed by order dated 21.02.2009.
Thereafter, appellant herein filed a Misc.Petition in
Misc.No.3/2011 under Order 9 Rule 13 of CPC and also
filed an application for condonaton of delay under Section
5 of the Limitation Act. The Executing Court dismissed the
application for condonation of delay. Consequently,
dismissed the Misc. Petition. The appellant herein,
claiming to be the daughter of Puttappa and claiming her
right in the suit schedule property, submitted that without
giving an opportunity of hearing, the final decree
proceedings has been passed.
3. Be that as it may. Since the appellant herein has
been placed ex-parte and final decree proceedings in FDP
No12/2002 has been passed, in the interest of justice, to
give one more opportunity, I am of the opinion that
NC: 2023:KHC:29677
MFA No. 1742 of 2013
Misc.No.3/2011 has to be allowed by condoning the delay
in filing the Misc. Petition.
4. In view of the above, I pass the following order:
(i) The appeal is allowed.
(ii) The order dated 16.01.2013 passed in
Misc.No.3/2011 is set aside.
(iii) FDP No.12/2002 is restored to the file
by setting aside the order dated 21.02.2009
passed in FDP proceedings.
(iv) The Civil Judge (Sr.Dn.), Chitradurga
is directed to reconsider the FDP, in accordance
with law, after giving opportunity to both the
parties, subject to the condition that the
appellant herein shall pay a cost of Rs.15,000/-
to respondent Nos. 1 and 2 herein, on or before
26.09.2023.
NC: 2023:KHC:29677
MFA No. 1742 of 2013
(v) The parties are directed to appear
before the FDP Court at 11.00 a.m. on
26.09.2023, without any further notice.
(vi) On payment of cost, the FDP Court is
directed to dispose of the suit, as expeditiously
as possible, not later than three months from
the date of appearance of the parties.
Sd/-
JUDGE
CM
