Karnataka High Court
Smt Kalamma vs Sri Narasimhamurthy on 21 May, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:17527
WP No. 13525 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 13525 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. KALAMMA
W/O LATE NARASAIAH,
AGED ABOUT 89 YEARS,
2. SMT. JAYAMMA
D/O LATE NARASAIAH,
W/O RANGASWAMY,
AGED ABOUT 66 YEARS,
3. SMT. SAROJAMMA
D/O LATE NARASAIAH,
W/O DHANANJAYA,
AGED ABOUT 63 YEARS,
4. SMT LAKSHMAMMA
D/O LATE NARASAIAH,
Digitally
signed by W/O VASANTHA
SUMA B N AGED ABOUT 58 YEARS,
Location: High
Court of
Karnataka 5. SRI NARASIMHAMURTHY
S/O LATE NARASAIAH,
AGED ABOUT 53 YEARS,
ALL ARE RESIDING AT
AGALAKOTE VILLAGE,
KASABA HOBLI, MAGADI TAULK,
RAMANAGARA DISTRICT-562 120.
...PETITIONERS
(BY SRI. SHARATH S GOWDA.,ADVOCATE)
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WP No. 13525 of 2024
AND:
1. SRI NARASIMHAMURTHY
S/O LATE DODDAIAH,
AGED ABOUT 50 YEARS,
2. SMT NARASAMMA
W/O LATE VYRAMUDI
D/O LATE DODDAIAH,
AGED ABOUT 52 YEARS,
3. SMT NANJAMMA
W/O LATE DODDAIAH,
AGED ABOUT 70 YEARS,
4. SRI CHANNAIAH
S/O LATE KEMPAIAH,
AGED ABOUT 74 YEARS,
ALL ARE RESIDING AT
AGALOKOTE VILAGE,
KASABA HOBLI, MAGADI TALUK,
RAMANAGARA DISTRICT-562 120.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 24.04.24 PASSED IN MISC NO.
27/2016 BY THE COURT OF PRINCIPAL CIVIL JUDGE AND JMFC,
MAGADI VIDE ANNEXURE-A AND ETC.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 13525 of 2024
ORDER
The short grievance of the petitioners in this petition
is that an exparte judgment and decree had been passed
in O.S.No.464/2013 on the file of Principle Civil Judge &
JMFC, Magadi on 25.08.2014 decreeing the suit for
partition filed by the respondent Nos. 1 to 3 herein and a
final decree proceedings were initiated by the respondents
1 to 3 herein in FDP No. 14/2016 and that only when
notice on final decree proceedings were served on
petitioners, they learnt about passing of the judgment and
decree in O.S.No.464/2013. That immediately thereafter
the petitioners filed a Miscellaneous Petition in
Mis.P.No.27/2016 under Order 9 Rule 13 of CPC seeking
restoration of the suit. That since there was a delay in
filing said Miscellaneous Petition, an application seeking
condonation of delay was also filed.
2. It is the further case of the petitioners that an
application was filed before the Trial Court seeking stay of
the said judgment and decree untill consideration of the
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miscellaneous petition filed by the petitioners. That the
petitioners had filed a memo seeking consideration of the
said application which came to be rejected by the
impugned order, which reads as under;
"Sri. DKG advocate filed NOC RI 104-CBH
vakalath for petitioners and also filed memo
stating the IA No.1 is pending for
consideration. Hence prays to recall the order
and post for hearing on IA No.1. order and
carefully gone through the records the
petitioner at the time of filing petition filed IA
No.2 U/sec. 5 of Lamination act by condoning
the delay of 755 days. After filing objection by
the respondent posted for enquiry on
limitation, hence it is just and necessary to
conduct enquiry on limitation.
Hence the memo filed by the petitioner counsel
is hereby rejected.
PW 2 present and fully cross examined
Petitioner counsel submits no further evidence
on behalf of petitioner.
Respondents counsel prays time for enquiry.
Call on 04.06.2024."
4. Learned counsel for the petitioners submits that
merely because an application for condonation of delay is
pending consideration, the Trial Court could not have
rejected the prayer seeking stay of further proceedings.
He further submits that Trial Court ought to have passed
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the reasoned order for the purpose of rejecting the said
prayer. Hence the petition.
5. Heard. Perused the records.
6. The records would reveal that there is a delay
of 755 days in filing the miscellaneous petition by the
petitioners and said application is not considered by the
Trial Court. The petitioners had filed a memo seeking stay
of the proceedings in FDP proceedings.
7. There is considerable force in the submission
being made by the counsel for the petitioners that if the
FDP proceeding are not stalled, the very purpose of filing
the miscellaneous petition would render infructuous.
8. In that view of the matter, petition is disposed
of with a direction to the Trial Court to consider application
for condonation of delay and application for stay of the
final decree proceedings, as expeditiously as possible,
within an outer limit of 30 days from the date of receipt of
the certified copy of this order, after affording sufficient
opportunities to the parties.
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Till such time, drawing up of final decree in FDP
No.14/2016 is stayed.
Sd/-
JUDGE
