Karnataka High Court
Shekappa @ Chandrashekhar S/O Bapu Kali vs Gangabai W/O Basavaraj Chalagetri And ... on 8 November, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC-K:8292
WP No. 202691 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.202691/2022(GM-CPC)
BETWEEN:
SHEKAPPA @ CHANDRASHEKHAR
S/O. BAPU KALI
AGE 34 YEARS, OCC. AGRICULTURE
R/O. HONAWAD
TQ. & DIST. VIJAYAPURA - 586 102.
...PETITIONER
(BY SRI RAVINDRA REDDY, ADVOCATE)
AND:
Digitally signed
by SUMITRA 1. SMT. GANGABAI
SHERIGAR W/O. BASAVARAJ CHALAGETRI
Location: HIGH
COURT OF R/O. BYAKOD
KARNATAKA AGE 65 YEARS, OCC. HOUSEHOLD
R/O. SINDAGI
DIST. VIJAYAPURA - 586 128.
2. SRI BASAVARAJ
S/O. NINGAPPA NAGOND
AGE 35 YEARS, OCC. AGRICULTURE
R/O. BYAKOD, TQ. SINDAGI.
DIST. VIJAYAPURA - 586 128
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WP No. 202691 of 2022
3. SRI RAMESH
S/O. NINGAPPA NAGOND
AGE 34 YEARS
OCC. AGRICULTURE
R/O. BYAKOD
TQ. SINDAGI - 586 128.
DIST. VIJAYAPURA
4. SRI NINGAPPA
S/O. NINGAPPA NAGOND
AGE 32 YEARS
OCC. AGRICULTURE
R/O. BYAKOD
TQ. SINDAGI - 586 128
DIST. VIJAYAPURA.
5. SRI BASAVANT
S/O. GURALINGAPPA KALI
AGE 40 YEARS
OCC. AGRICULTURE
R/O. HONAWAD,
TQ. & DIST. VIJAYAPURA - 586 102.
6. SMT. NILAWWA GURALINGAPPA KALI
AGE 35 YEARS
OCC. HOUSEHOLD
R/O. HONAWAD
TQ.& DIST. VIJAYAPURA - 586 102.
...RESPONDENTS
(R2 TO R6 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
WRIT OF CERTIORARI QUASHING ORDER ON I.A. IX DATED
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WP No. 202691 of 2022
15.06.2020 IN F.D.P.NO.3/2010 BY THE COURT OF THE
PRINCIPAL CIVIL JUDGE, VIJAYPURA, VIDE ANNEXURE-G.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR)
This petition by the defendant in FDP No.3/2010 is
directed against the impugned order dated 15.06.2020,
whereby, the application I.A. No.IX filed by the petitioner
under Section 151 CPC for a direction to record oral
evidence before issuing Commission warrant was rejected
by the Court of the Principal Civil Judge, Vijayapura, (for
short 'FDP Court'), Vide Annexure-G.
2. A perusal of the material on record will indicate
that respondent Nos.1 to 4 - plaintiffs instituted the
aforesaid final decree proceedings in FDP No.3/2010 to
enforce and implement the primary decree dated
19.02.1970 passed in O.S. No.268/1968 by the FDP Court,
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confirmed by the first Appellate Court in R.A. No.78/1972.
The said petition is being contested by the petitioner, who
is arrayed as defendant No.2g in the said final decree
proceedings. During the course of the said final decree
proceedings, the petitioner filed the instant application
seeking recording of oral evidence before issuance of
Commission Warrant on the ground that the final decree
proceedings instituted in the year 2010 to enforce and
implement the preliminary decree of the year 1970 after a
lapse of 40 years was barred by limitation. The said
application having been opposed by respondent Nos.1 to 4
- plaintiffs, the FDP Court proceeded to reject IA No. IX on
the ground that there was no limitation prescribed for
institution of final decree proceedings, inasmuch as final
decree proceedings are only continuation of a suit for
partition and the final decree petition is nothing more than
an interlocutory application in a pending suit and
consequently Article 137 of the Limitation Act would not be
applicable to a final decree petition filed in a suit for
partition. While coming to the said conclusion, the FDP
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Court placed reliance upon the judgment of Division Bench
of this Court in the case of P.B. Kotturbasappa &
Others Vs. K.B. Veerappa since Dead by Lrs., to hold
that there is no prescribed period for institution of a final
decree petition or final decree proceedings.
3. After having considered the contentions urged
by the petitioner, and upon perusal of the impugned order,
I am of the considered opinion that the FDP Court was
fully justified in rejecting I.A. No.IX filed by the petitioner
by proper and correct appreciation of the material on
record and the impugned order cannot be said to suffer
from any illegality or infirmity nor can the same be said to
have occasioned failure of justice warranting interference
by this Court in the present petition, which is liable to be
dismissed held in Radhey Shyam v. Chhabi Nath and
others, (2015) 5 SCC 423. Accordingly, I do not find
any merit in the petition and the same is hereby
dismissed.
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4. However, liberty is reserved in favor of the
petitioner and respondents to adduce oral and
documentary evidence in support of their respective
claims, which shall be considered by the FDP Court in
accordance with law.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
SBS
