Karnataka High Court
Murigeppa S/O Veerabharappa ... vs Smt.Rudravva W/O ... on 4 January, 2023
Bench: M.G.S. Kamal
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RSA No. 100184 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
R.S.A.NO.100184 OF 2016 (PAR)
BETWEEN:
MUREGAPPA
S/O VEERABHARAPPA MALLUR,
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O. HIREBENDIGERI,
TQ: SHIGGAON-581205
DIST: HAVERI.
...APPELLANT
(BY SRI SANTOSH B. MALLIGAWAD, ADV.
FOR SRI B.K.MALLIGAWAD, ADV.)
AND:
1. SMT.RUDRAVVA
W/O MALLIKARJUNAPPA MORABAD
AGE: 73 YEARS, OCC: HOUSEHOLD,
TQ: SHIGGAON - 581205,
DIST: HAVERI.
2. GADIGEVVA W/O SHIVAPPA GOBBI
SINCE DECEASED BY HER LRS.
2(A) SMT.DAKKAWWA @ DRAKSHYANI
W/O MURUGAPPA MALLUR,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: MUGALI, TQ: SHIGGAON-581205,
DIST: HAVERI.
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RSA No. 100184 of 2016
2(B) VARUNAVVA W/O VIRUPAKHSAPPA
@ VEERAPPA SHIRAGUPPI
AGE: 40 YEARS, OCC: HOUSEHOOLD,
R/O: RAMAPUR, TQ: KUNDGOL-581113
DIST: DHARWAD.
2(C) NEELAVVA
W/O MALLANGOUDA POLICEGOUDAR
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: BENNUR, TQ: SHIGGAON-581205
DIST: HAVERI.
2(D) SHAMBANNA S/O SHIVAPPA GOBBI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: MUGALI, TQ: SHIGGAON-581205,
DIST: HAVERI.
2(E) SMT.LAXMI W/O IRAPPA SHIGGAON
AGE: 30 YEARS, OCC: HOUSEHLD,
R/O: HULSOGI, TQ: SHIGGAON-581205,
DIST: HAVERI.
...RESPONDENTS
(BY SRI MAHESH WODEYAR ADV. FOR R1
NOTICE TO R2(A) TO R2(E) : SERVED.)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CIVIL PROCEDURE CODE PRAYING THIS COURT TO SET
ASIDE THE JUDGMENT AND DECREE DATED 22.07.2015 IN
R.A.NO.02/2012 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE,
HAVERI ON I.A.NO.1 AND DISMISS THE SUIT, CONSEQUENTLY SET
ASIDE THE FINAL DECREE WHICH IS MODIFIED ORDER DATED
19.04.2011 CIVIL MISC.NO.3/2008 PASSED BY THE COURT OF CIVIL
JUDGE AND JMFC AT SHIGGAON WHICH RESULTED IN
MODIFICATION OF F.D.P.3/2002 IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100184 of 2016
JUDGMENT
1. The present appeal is filed by the defendant
aggrieved by the judgment and decree dated 22.07.2015
passed in R.A.No.2/2012 by the Principal Senior Civil
Judge, Haveri (hereinafter referred to as "the First
Appellate Court" for short) on I.A.No.1 filed under Section
5 of the Limitation Act, 1963 read with Order XLIII Rule 3
(a) read with Section 151 of the Code of Civil Procedure,
1908 (hereinafter referred to as "CPC" for short)
dismissing the said application for condonation of delay of
5 years 6 months and against the order dated 19.04.2011
passed in Civil Misc.No.3/2008 by the Civil Judge and
JMFC, at Shiggaon (hereinafter referred to as "the Trial
Court" for short)
2. It is the case of the appellant/defendant that
the suit in O.S.No.140/1994 was filed by respondent
No.1/plaintiff for the partition and separate possession.
The said suit was decreed on 10.03.1999 allotting 1/6th
share to the plaintiff. Final decree proceedings in
RSA No. 100184 of 2016
FDP.No.3/2002 was initiated in the year 2002 and that on
05.07.2006, the final decree was drawn by the Trial Court.
That subsequently an application under Section 114 read
with Order XLVII of CPC was filed by the plaintiff seeking
modification of the share in view of the amendment to
Section 6 of the Hindu Succession Act, 1956. The said
application was allowed by the Trial Court by its order
dated 19.04.2011, thereby modified the Final Decree
dated 05.07.2006. Aggrieved by the same, appellant filed
Regular Appeal in R.A.No.2/2012.
3. Aggrieved by the said order the defendant-
appellant herein had filed a miscellaneous appeal in
M.A.No.2/2012 before the First Appellate Court, which was
also dismissed on 22.07.2015 on the ground of delay.
4. Notwithstanding the filing of the said
M.A.No.2/2012, the appellant filed the regular appeal in
R.A.No.2/2012 challenging the order dated 05.07.2006
passed in the final decree proceedings as well as the order
dated 19.04.2011.
RSA No. 100184 of 2016
5. Since there was a delay of 5 years 6 months,
the appellant had filed application under Section 5 of the
Limitation Act seeking condonation of delay. The First
Appellate Court not being satisfied with the cause shown
for the condonation of delay, dismissed the said
application and consequently dismissed the said regular
appeal as well. Being aggrieved by the same, the
appellant is before this Court.
6. Sri S.B.Malligawad learned counsel for the
appellant submits that there was an error in calculating
the period for the purpose of limitation in which instead of
reckoning the period from the order passed in Civil
Miscellaneous petition on 19.04.2011, it was made from
05.07.2006, the date on which the final decree
proceedings were drawn. Therefore, he submits that this
error was bonafide, which the First Appellate Court ought
to have looked into.
7. On merits learned counsel for the appellant
submits that, the order passed in Civil Miscellaneous
RSA No. 100184 of 2016
No.3/2008 was erroneous as once the final decree is
drawn, there is no possibility or permissibility under law to
reopen the same under any circumstances whatsoever.
8. Learned counsel, in justification of his
contention relied upon the judgment of the Apex Court in
the case of PHOOLCHAND AND OTHERS VS. GOPAL LAL
reported in AIR 1967 SC 1470, referring to paragraph
No.7 of the said judgment. He submits that, there can be
modification of preliminary decree but before drawing up
of the final decree. He submits that, once the final decree
is drawn, there is no scope for altering or modifying the
final decree. Therefore, he submits that the order passed
in Civil Miscellaneous No.3/2008 is erroneous requires to
be set aside.
9. Further relying upon the judgment of the Apex
Court in the case of PUNJABI UNIVERSITY AND OTHERS
VS. ACHARYA SWAMI GANESH AND OTHERS reported in
AIR 1972 SC 1973 he submits that because of the
mistake of the counsel, the party should not suffer. He
RSA No. 100184 of 2016
submits that, the said judgment is squarely applicable to
the facts of the instant case as the calculation of the
limitation was an error on the part of the counsel and the
same shall not affect the right of the parties. Thus he
submits that the present appeal raises substantial
question of law to be considered.
10. On the other hand Sri Mahesh Wodeyar,
learned counsel for the respondent raised serious
questions with regard to very maintainability of the
present appeal. In that regard, he submits that Civil
Misc.No.3/2008, which was filed, was indeed a revision
petition filed under Section 114 read with Order XLVII of
CPC in view of the amendment to Section 6 of the Hindu
Succession Act, 1956. The said miscellaneous petition was
allowed by a detailed order dated 19.04.2011 after the
contest by the appellant herein. Being aggrieved by the
same, the appellant herein had filed M.A.No.2/2012 which
was dismissed on 22.07.2015 and the appellant has not
chosen to challenge the said order of dismissal of
miscellaneous appeal. Thus he submits that the said order
RSA No. 100184 of 2016
having attained finality, the appellant is not allowed to
challenge the said order by way of filing a regular appeal
and such course of action is not permissible in law.
11. As regards the merits of the case is concerned,
learned counsel for the respondent submits that the final
decree proceedings, as rightly taken note of by the Trial
Court at paragraph Nos.10 and 11 of the order passed in
civil miscellaneous petition, were not closed. He submits
that, except filing of the Commissioner report nothing has
been done. Possession of the property by metes and
bounds has not handed over to the parties. Therefore, he
submits that the same cannot be held as a conclusion of
final decree proceedings.
12. Learned counsel for the respondent relying
upon the judgment of the coordinate Bench of this Court
in W.P.No.65400/2012 dated 20.08.2014 in the case of
VIJAYAKUMAR AND ANOTHER VS. SRI MANOHAR
RAMACHANDRA AWATE SINCE DECEASED BY HIS LRS.
And also the judgment in the case of BASAVARAJ AND
ANOTHER VS. SPECIAL LAND ACQUISITION OFFICER
RSA No. 100184 of 2016
(paragraph No.9), submits there is no substantial
question of law arises in the matter.
13. As regards the limitation is concerned, he
submits that, the party has consciously calculated the
period of 5 years 6 months and not having shown
sufficient cause, no fault can be found on the part of the
First Appellate Court in rejecting the said application.
14. Heard and perused the records.
15. It is interesting note that the appellant has not
whispered in this second appeal regarding he filing a
miscellaneous appeal in M.A.No.2/2012 against the order
dated 19.04.2011, which miscellaneous appeal is also
dismissed by the First Appellate Court by order dated
22.07.2015. The said aspect is significant for the purpose
of determination of the present appeal. Though the same
is not stated in the appeal when the learned counsel for
the respondent brought to the notice of the Court same is
not denied either.
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RSA No. 100184 of 2016
16. It is not in dispute that the preliminary decree
was drawn in the suit filed by respondent No.1/plaintiff in
O.S.No.140/1994 on 14.09.1990 allotting 1/6th share to
her. Final decree proceeding in FDP.No.3/2002 was
initiated during the year 2002 and the said proceedings
were pending consideration when the amendment to
Section 6 of the Hindu Succession Act, 1956 was brought
in. As taken note of by the Trial Court at paragraph No.10
and 11 of the order dated 19.04.2011 passed in civil
miscellaneous petition, no possession of the property was
allotted to the parties by metes and bounds. Thus the
contention, that the final decree proceedings were
concluded, was not accepted by the Trial Court rightly so
as the possession of the property were not delivered.
17. Be that as it is, the proceedings in
miscellaneous petition was under Section 114 read with
Order XLVII of CPC seeking review of the final decree
proceedings was filed in view of the change in the position
of law. The said application having been allowed order
dated 19.04.2011 and a challenge to the said order having
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RSA No. 100184 of 2016
been lodged by the appellant unsuccessfully in
M.A.No.2/2012, which also resulted in dismissal on
22.07.2015, the appellant has not challenged the said
order. The said order having attained finality, as rightly
contended by learned counsel for the respondent/plaintiff,
it is not open for the defendant to have adopted another
course by filing regular appeal challenging the same order
yet again, though couched as challenge to the order dated
05.07.2006 passed in final decree proceedings.
18. As regards the limitation is concerned, though it
is submitted that there was error in calculating the period
in which instead of calculating period from 19.04.2011,
due to the bonafide mistake on the part of the counsel for
the appellant it was calculated from 05.07.2006, no such
explanation has been given before the First Appellate
Court. No such grounds have been raised before the First
Appellate Court. As rightly contended by the learned
counsel for the respondent, it appears to be a conscious
move to a parallel proceedings in R.A.No.2/2012 with that
proceedings in M.A.No.2/2012.
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RSA No. 100184 of 2016
19. The appellant has not come with clean hands.
In that view of the matter, no irregularities or illegality can
be attributed to the order passed by the First Appellate
Court.
20. For the aforesaid reasons, no substantial
question of law arises whereas the present appeal
particularly in view of order passed in civil miscellaneous
having attained finality in dismissal of M.A.No.2/2012.
21. In that view of the matter appeal is hereby
dismissed.
22. In view of dismissal of the appeal
I.A.No.2/2016 does not survive for consideration and the
same is disposed of accordingly.
sd
JUDGE
EM
