Karnataka High Court
Mudukappa S/O Bhimappa And Ors vs Gangappa S/O Basappa And Ors on 1 February, 2024
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NC: 2024:KHC-K:1195
RSA No. 200024 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200024 OF 2022
(PAR/POS)
BETWEEN:
1. MUDUKAPPA S/O BHEEMAPPA
AGE : 50 YEARS, OCC : AGRICULTURE,
R/O. GANEKAL, TQ. DEVADURGE,
DIST. RAICHUR-584136.
2. BASANNA S/O MUDUKAPPA
AGE : 37 YEARS, OCC : AGRICULTURE,
R/O. GANEKAL, TQ. DEODURGA,
DIST. RAICHUR-584136.
3. BASAVALINGAPPA S/O MUDUKAPPA,
AGE : 35 YEARS, OCC. AGRICULTURE,
R/O. GANEKAL, TQ. DEODURGA,
Digitally DIST. RAICHUR-584136.
signed by
SACHIN
Location: 4. SMT.RENUKAMMA W/O BHEEMAPPA,
HIGH
COURT OF
KARNATAKA
AGE : 33 YEARS, OCC. AGRICULTURE AND
HOUSEHOLD, R/O. SHOLAPUR,
MAHARASHTRA - 413001.
5. RAJENDRA S/O MUDUKAPPA
AGE : 32 YEARS, OCC. AGRICULTURE,
R/O. GANEKAL, TQ. DEODURGA,
DIST. RAICHUR-584136.
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RSA No. 200024 of 2022
6. SIDDRAMAPPA S/O MUDUKAPPA,
AGE: 20, OCC. STUDENT,
R/O. GANEKAL, TQ. DEODURGA,
DIST. RAICHUR-584136.
7. KUM.ANURADHA D/O MUDUKAPPA,
AGE : 19 YEARS, OCC. HOUSEHOLD,
R/O. GANEKAL, TQ. DEODURGA,
DIST. RAICHUR-584136.
...APPELLANTS
(BY SRI. GANESH SUBHASHCHANDRA KALBURGI, ADVOCATE)
AND:
1. GANGAPPA S/O BASAPPA,
AGE : 40 YEARS, OCC. AGRICULTURE,
R/O. GANEKAL, TQ. DEVADURGE,
DIST. RAICHUR-584136.
2. MARDEPPA S/O BASAPPA,
AGE : 36 YEARS, OCC. AGRICULTURE,
R/O. GANEKAL, T.Q DEODURGA,
DIST. RAICHUR-584136.
BASAPPA S/O BASAPPA,
DIED IN 2015.
3. PAKEERAMMA W/O BASALINGAPPA,
AGE : 55 YEARS, OCC. AGRICULTURE AND
HOUSEHOLD, R/O. BUDHINAL,
TQ. DEODURGA, DIST. RAICHUR-584136.
4. BASAMMA W/O SIDRAMAPPA,
AGE. 53 YEARS,
OCC. AGRICULTURE AND HOUSEHOLD,
R/O. GOUDOOR, TQ. LINGASUGUR,
DIST. RAICHUR-584136,
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RSA No. 200024 of 2022
NOW STAYING AT SHOLAPUR,
MAHARASHTRA - 413001.
...RESPONDENTS
(BY SRI. SHIVAKUMAR KALLOOOR, ADVOCATE FOR R1 & R2;
NOTICE TO R3 IS HELD SUFFICIENT VIDE ORDER DATED
07.03.2022; NOTICE TO R4 - SERVED, UNREPRESENTED)
THIS IS RSA FILED U/S.100 OF THE CPC, PRAYING TO
ALLOW THE APPEAL AND TO SET ASIDE THE ORDER DATED
29.05.2020 PASSED IN CIVIL.MISC.NO.38/2017 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC, DEVADURGA
CONFIRMING THE JUDGMENT AND DECREE DATED 24.07.2017
IN O.S.NO.36/2011 ON THE FILE OF CIVIL JUDGE AND JMFC AT
DEVADURGA AND TO PASS ANY OTHER APPROPRIATE ORDER
IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant
No.1/petitioner in Civil Misc.No.38/2017 on the file of
Senior Civil Judge and JMFC, Devadurga, dismissing the
appeal preferred by the appellant on the ground of delay
and laches in filing appeal, dated 29.05.2020, confirming
the judgment and decree dated 24.07.2017 in
O.S.No.36/2011 on the file of Civil Judge, Deodurga,
decreeing the suit of the plaintiffs.
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2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. The plaintiffs have filed suit in O.S.No.36/2011
seeking relief of partition and separate possession in
respect of suit schedule properties. The suit came to be
decreed by judgment and decree dated 24.07.2017.
Feeling aggrieved by the same the defendant No.2 filed
appeal under Section 96 of Code of Civil Procedure and as
there is delay in filing the appeal and as such the appellant
therein has filed application in Civil Misc.No.38/2017 under
Section 5 of Limitation Act seeking condonation of delay of
45 days in filing the appeal. The said application was
dismissed by order dated 29.05.2020 and consequently
the appeal fails. Being aggrieved by the same defendant
Nos.2 and 5 have preferred present appeal.
4. I have heard learned counsel Sri Ganesh
Subhashchandra Kalburgi, appearing for the appellants
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and Sri Shivakumar Kalloor, learned counsel appearing for
respondent Nos.1 and 2.
5. Sri Ganesh Subhashchandra Kalburgi, learned
counsel appearing for the appellant submitted that the
relief sought for by the plaintiffs is with regard to partition
and separate possession and therefore the appellants have
shown sufficient cause to condone the delay of 45 days in
filing the appeal and accordingly sought for interference of
this Court.
6. Per contra, Sri Shivakumar Kalloor, learned
counsel appearing for respondent Nos.1 and 2 sought to
justify the order impugned in this appeal.
7. Heard the learned counsel appearing for the
parties. I have carefully examined the reasons assigned in
the application accompanying affidavit in IA No.1 filed
under Section 5 of the Limitation Act filed by the
appellants before the First Appellate Court. Undisputably,
the suit is filed by the plaintiffs seeking relief of partition
and separate possession. In that view of the matter, the
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First Appellate Court ought to have accepted the reasons
set out in the affidavit accompanying application in
I.A.No.1, as per the dictum of the Hon'ble Supreme Court
in the case of Shakuntala Devi Jain v. Kuntal Kumari1
and in the case of Esha Bhattacharjee v. Managing
Committee of Raghunathpur Nafar Academy and
others2. Therefore, I find force in the submission made by
the learned counsel appearing for the appellants and the
order impugned dated 29.05.2020 passed by the First
Appellate Court in Civil Misc.No.38/2017 is hereby set-
aside and the application filed by the appellants in
I.A.No.1 under Section 5 of Limitation Act before the First
Appellate Court is to be accepted.
8. It is to be noted that as the suit is of the year
2011, I am of the view that, the First Appellate Court shall
dispose of the appeal preferred by the appellants herein
against the judgment and decree dated 24.07.2017 in
O.S.No.36/2011, at the earliest within an outer limit of
AIR 1969 SC 575
(2013) 12 SCC 649
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four months from the date of receipt of certified copy of
this judgment.
9. In order to avoid further delay in the matter as
the learned counsels are appeared before this Court, the
parties are directed to appear before the First Appellate
Court on 29.02.2024 at 11.00 a.m.
With these observations appeal is disposed of.
Sd/-
JUDGE
SN
