Karnataka High Court
Ashok S/O Ramappa Guddappagol vs Smt. Neelagangawwa And Ors on 5 November, 2024
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NC: 2024:KHC-K:8099
MFA No. 202623 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
MISCL. FIRST APPEAL NO.202623 OF 2019 (CPC)
BETWEEN:
ASHOK S/O RAMAPPA GUDDAPPAGOL,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O KOLHAR, TQ: BASAVANA BAGEWADI.
...APPELLANT
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
1. SMT. NEELAGANGAWWA
W/O MALLAPPA SHIRANI,
AGE: 62 YEARS, OCC: HOUSEHOLD,
Digitally signed by
RENUKA R/O KUBAKADDI, TQ: BASAVANA
Location: HIGH BAGEWADI-586210.
COURT OF
KARNATAKA
2. SMT. CHINNAWWA
W/O CHANNAPPA PAWADSHETTER,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O HONNIHAL, TQ: BILAGI-587116.
3. SMT. CHANNAWWA W/O NEELAPPA KIRASUR,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O GIRISAGAR, TQ: BILAGI-587116.
4. SMT. PRABHAVATI W/O UMESH BIDARI,
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O MULAWAD, TQ: BASAVANA
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NC: 2024:KHC-K:8099
MFA No. 202623 of 2019
BAGEWADI-586203.
5. NAGARAJ S/O MALLAPPA SHIRANI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O KUBAKADDI, TQ: BASAVANA
BAGEWADI-586210.
...RESPONDENTS
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADV. FOR R1 TO R4;
V/O DTD. 28.10.2024, NOTICE TO R5 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(D) OF CPC, PRAYING TO CALL FOR THE
RECORDS OF THE TRIAL COURT AND ALLOW THE CIVIL MISC.
CASE NO.06/2016 BY SETTING ASIDE THE ORDER DATED
09.08.2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, BASAVANA BAGEWADI AND FURTHER SET ASIDE THE
EXPARTE JUDGMENT AND DECREE DATED 03.12.2014 PASSED
IN O.S.NO.12/2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE, BASAVANA BAGEWADI BY GIVINGF OPPORTUNITY TO
THE APPELLANT TO CONTEST THE SAID SUIT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM)
The captioned appeal is by defendant No.2 assailing
the order passed by the Court below in Civil Miscellaneous
No.6/2016. The Court below has declined to entertain an
application filed by the appellant herein under Order IX
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Rule 13 of Code of Civil Procedure who had sought for
setting aside ex parte decree.
2. Respondent Nos.1 to 4 filed a suit for partition
and separate possession in O.S.No.12/2012 and also
sought a declaration that the sale deed executed by
respondent No.5 in favour of the appellant herein is not
binding on their legitimate share.
3. The present appellant, who was arrayed as
defendant No.2 though engaged a lawyer, failed to contest
the suit by filing written statement. The Trial Court
decreed the suit granting 1/5th share to each of the
plaintiffs. The present appellant, who failed to contest the
proceedings, filed a petition under Order IX Rule 13 of CPC
requesting to set aside the ex parte decree. The Court
below having recorded the evidence, declined to accept
the reasons assigned by the appellant herein while seeking
setting aside an ex parte decree. The Court below found
that there is a delay of 1 years 104 days which is not
NC: 2024:KHC-K:8099
properly explained. Consequently, the petition filed under
Order IX Rule 13 of CPC is rejected.
4. Admittedly, the suit properties are joint family
ancestral properties. Defendant No.2 is a purchaser of an
undivided share from one of the sons of respondent
No.1/plaintiff No.1. It is a trite law that the purchaser of
an undivided share has no locus to contest a partition suit,
unless he alleges collusion between plaintiffs and his
vendor. Since the plaintiffs are not parties to the sale
deed, the alienation made by defendant No.1 i.e.,
respondent No.5 does not bind on the legitimate share of
the plaintiffs. It is in this background, this Court is of the
view that the appellant herein being defendant No.2 in a
partition suit has practically no defence in the case on
hand.
5. Be that as it may, the fact that the Trial Court
had quantified the shares and the plaintiffs are awarded
1/5th share each, the sale deed obtained by the appellant
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herein is valid to the extent of 1/5th share and would step
into the shoes of defendant No.1, who is allotted 1/5th
share. Therefore, reserving liberty to the appellant herein
to work out his equitable rights in final decree
proceedings, the captioned appeal is liable to be
dismissed.
6. For the reasons stated supra, the appeal is
dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
RSP
CT-SW
