Karnataka High Court
Pratima W/O Mangaldas Bandekar vs Ramchandra S/O Gundu Patil on 9 January, 2024
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NC: 2024:KHC-D:483-DB
RFA No. 100120 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100120 OF 2018 (PAR)
BETWEEN:
1. PRATIMA W/O. MANGALDAS BANDEKAR
AGE 46YRS, OCC: H/W
R/O: HOUSE NO.3937
LAXMI NAGAR, MACHCHE
TAL AND DIST BELAGAVI 590001.
2. CHANDRAKANT S/O. RAMCHANDRA PATIL
AGE:44 YRS, OCC:AGRICULTURE
R/O:HOUSE NO.4131, KANGRALI GALLI
BELAGAVI TAL AND DIST:BELAGAVI.
3. BHARATI W/O. BHARAT HUNDRE
AGE:41YRS, OCC:H/W AND AGRICULTURE
Digitally signed R/O:PARWATI NAGAR, KANGRALI (B.K)
by SAMREEN
AYUB TAL AND DIST:BELAGAVI 590001.
DESHNUR
Date:
2024.01.17 4. SHRI JOTIBA S/O. RAMCHANDRA PATIL
11:48:25 +0530
AGE:39 YRS, OCC:AGRICULTURE,
R/O:HOUSE NO.4131,
KANGRALI GALLI, BELAGAVI,
TAL AND DIST:BELAGAVI 590001.
...APPELLANTS
(BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE)
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NC: 2024:KHC-D:483-DB
RFA No. 100120 of 2018
AND:
1. RAMCHANDRA S/O. GUNDU PATIL,
SINCE DECEASED BY HIS LRS
WHO ARE ALREADY ON RECORD
AS APPELLANT NO. 1 TO 4 AND RESPONDENT NO. 2
2. SMT. MALU W/O. RAMCHANDRA PATIL
AGE:53 YRS OCC: H/W AND AGRICULTURE
R/O:HOUSE NO.4131 KANGRAL GALLI
BELAGAVI, TAL AND DIST:BELAGAVI 590001.
3. SHRI SANTOSH S/O. PAPALAL OZA
AGE:51 YRS, OCC:BUSINESS
R/OKELKAR BAG BELAGAVI
DIST:BELAGAVI 590001.
4. SHRI BABAGOUDA S/O. CHANABASGOUDA PATIL
AGE:80YRS, OCC:AGRICULTURE
R/O:MALLAPUR (K.N), TAL:BAILHONGAL
DIST:BELAGAVI 590001.
...RESPONDENTS
(BY SRI. SHARAD V. MAGADUM FOR C/R3, ADVOCATE;
APPELLANT NO. 1 TO 4 AND R2 ARE TREATED AS LRS OF
DECEASD R1;
R4 DECEASED)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER 41
R(1) R/W SECTION 96 OF C.P.C., PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 29/01/2018 PASSED IN O.S.
169/2015 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE
AND CHIEF JUDICIAL MAGISTRATE BELAGAVI BY ALLOWING
THE TOP NOTED APPEAL TO MEET THE ENDS OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:483-DB
RFA No. 100120 of 2018
JUDGMENT
As the appellant has not taken steps to bring the
legal representatives of the deceased respondent No.4, the
appeal was abated against the respondent No.4.
2. The Hon'ble Apex Court in the case of
Hemareddi (dead) through legal representatives v.
Ramachandra Yallappa Hosamani and others reported
in (2019) 6 Supreme Court Cases 756 has held as
under:
"14. Admittedly, steps were not taken for substitution in
regard to the second appellant. The appeal, therefore,
abated qua him as is declared by Order XXII Rule 3(2).
Though this is all that the Order XXII Rule 2 declares, the
principle has evolved that in certain kinds of litigation, the
consequences of abatement qua a party are not limited to the
deceased party alone but it affects all the other parties and
the litigation itself. In other words, a suit or an appeal as the
case may be, would suffer an untimely demise by the
proceeding abating as a whole."
3. Since the appeal is filed for partition and separate
possession and the appeal abates against some of the
NC: 2024:KHC-D:483-DB
parties and as common interest is involved, considering
the law laid down by the Hon'ble Apex Court in
Hemareddi's case (supra), the entire appeal abates.
Accordingly, the appeal abates.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
