Sri Jayaramu vs Sri B Shivaprasad
2023 Latest Caselaw 7216 Kant

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                                                           NC: 2023:KHC:37118
                                                         RSA No. 1914 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 11TH DAY OF OCTOBER, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1914 OF 2021 (SP)

                   BETWEEN:

                   1.    SRI JAYARAMU
                         S/O LATE NARAYANAGOWDA
                         AGED ABOUT 55 YEARS
                         R/AT NO.115, WARD NO.14
                         YELEKERI, CHANNAPATANAT TOWN
                         RAMANGARA DISTRICT-562 160.
                                                                 ...APPELLANT

                             (BY SRI H.K. KENCHEGOWDA, ADVOCATE)
                   AND:

                   1.    SRI B. SHIVAPRASAD
                         S/O BOREGOWDA
                         AGED ABOUT 54 YEARS
                         R/AT NO.151, LAYADA BEEDI
Digitally signed
by SHARANYA T            CHANNAPATNA TOWN
Location: HIGH           RAMANAGARAM DISTRICT-562 160.
COURT OF                                                       ...RESPONDENT
KARNATAKA

                        THIS RSA IS FILED UNDER SECTION 100 OF CPC,
                   AGAINST THE JUDGMENT AND DECREE DATED 06.03.2021
                   PASSED IN R.A.NO.50/2019 ON THE FILE OF THE III
                   ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
                   DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT
                   AND DECREE DATED 21.07.2011 PASSED IN O.S.NO.640/2006
                   ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN.),
                   RAMANAGARA.

                        THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                            NC: 2023:KHC:37118
                                         RSA No. 1914 of 2021




                          JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellant.

2. This appeal is filed challenging the judgment and

decree passed in R.A.No.50/2019 and the First Appellate Court

dismissed the appeal on the ground that there is a delay of

2862 days i.e., more than 7½ years in preferring the appeal.

3. In support of the application, an affidavit is sworn

to by the appellant stating that immediately after passing of the

judgment and decree, he had applied for certified copies of the

same and presented the same to his advocate by name

Ramesh at Ramanagara with instructions to prefer an appeal.

The said advocate had insisted the appellant to obtain the

certified copies of oral as well as documentary evidence let in

by the parties to the above said suit before the Trial Court.

After conceding all the said requests and obtaining of certified

copies of oral as well as documentary evidence, the appellant

had handed over the same to his advocate Ramesh and thus

enabled him to file regular appeal. Thereafter, he made inquiry

with the said advocate and the said advocate replied him that

NC: 2023:KHC:37118 RSA No. 1914 of 2021

the matter would be taken up before the board after

condonation of delay caused in preferring the appeal and in the

meanwhile, he fell ill and as such, he could not contact his

advocate. It also submitted that the respondent in the

meanwhile preferred Execution Petition No.68/2012 and got

obtained the sale deed registered from the Court of law without

any personal notice to the appellant and had applied for

mutation of documents pertaining to the property in question.

The same is resisted by the respondent by filing statement of

objection.

4. The appellant has been examined as P.W.1 and got

marked the document as Exs.P1 to P4 and he was subjected to

cross-examination and thereafter, the First Appellate Court

having considered the material on record, particularly the

sworn affidavit and also the admission elicited from the mouth

of the appellant, wherein he categorically admitted that

Execution Petition was filed and he also engaged the counsel.

But, in the affidavit, he has sworn to that no notice was issued

to him in the Execution Petition and taking note of the

contradictions in the answers elicited from the mouth of the

appellant, comes to the conclusion that no satisfactory reasons

NC: 2023:KHC:37118 RSA No. 1914 of 2021

are assigned by the appellant. The First Appellate Court also in

Para No.16, taken note of contra statement made by the

appellant in I.A. under consideration per-se contrary to the

execution petition is concerned. The appellant also contend

that he fell ill during 2014-2015 and appeal was filed in 2019

and to substantiate the same, only relied upon Biochemistry

report dated 24.02.2016 and no document is placed with

regard to 2014 to 2016 and the same is taken note in Para

No.17 of the judgment. Hence, rightly comes to the conclusion

that no lenient view deserves to be taken for condonation of

delay of more than 7½ years.

5. Now, learned counsel for the appellant would

vehemently contend that suit is not maintainable and this Court

cannot look into the merits of the case, unless cogent reasons

are assigned for condoning the delay of 7½ years in preferring

the regular appeal. Hence, the First Appellate Court has not

committed any error in dismissing the appeal on the ground of

limitation. Therefore, the very contention of the learned

counsel for the appellant cannot be accepted, unless

satisfactory reasons are assigned explaining each day's delay

NC: 2023:KHC:37118 RSA No. 1914 of 2021

and the same has not been done. Hence, no ground is made

out to admit the appeal and frame substantial question of law.

Accordingly, the appeal is dismissed. In view of dismissal

of the appeal, I.As., if any do not survive for consideration and

the same stand disposed of.

Sd/-

JUDGE

ST