Karnataka High Court
Smt. Nagamma vs Sri K Veerendra Sinha Raje Urs on 4 September, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:36144
MSA No. 77 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 77 OF 2021
BETWEEN:
1. SMT. NAGAMMA
W/O LATE MAHADEVAIAH B.M
AGED ABOUT 48 YEARS,
2. SRI. GIRI PRASAD
S/O LATE MAHADEVAIAH B M,
AGED ABOUT 38 YEARS,
BOTH ARE R/AT NO.399, RAMAMANDIRA ROAD,
B.BETTANAHALLI VILLAGE, TALAKAD HOBLI,
T.N.PURA TALUK, MYSURU DISTRICT-571122.
...APPELLANTS
(BY SRI. MANJUNATHA K., ADVOCATE)
AND:
SRI. K. VEERENDRA SINHA RAJE URS
Digitally S/O LATE KANTHARAJE URS,
signed by AGED ABOUT 42 YEARS,
MALATESH
KC NO.276, 1ST STAGE, 12 CROSS, J.P.NAGARA,
Location: 'B' BLOCK, MYSURU-571122.
HIGH ...RESPONDENT
COURT OF (BY SRI. Y. V. PRAKASH, ADVOCATE)
KARNATAKA
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF
CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED
20.04.2021 PASSED IN RA.NO. 247/2019 ON THE FILE OF THE
III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU,
DISPOSING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 02.08.2018 PASSED IN OS.NO. 348/2016
ON THE FILE OF THE I ADDITIONAL I CIVIL JUDGE AND JMFC.,
MYSURU, DECREEING THE SUIT FOR RECOVERY OF MONEY
REMANDING BACK TO THE TRIAL COURT FOR FRESH
DISPOSAL.
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NC: 2024:KHC:36144
MSA No. 77 of 2021
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri. Manjunatha K., learned counsel for the
appellant and Sri.Y.V. Prakash for the contesting respondent.
2. The present appeal is by the defendants who are
successful in RA.No.247/2019 in getting the suit remitted to the
trial court.
3. The present appeal is filed by the appellants to set
aside the judgment and decree passed by the III Additional
District and Sessions Judge, Mysuru in R.A.No.247/2019 dated
20.04.2021 and to set aside the judgment and decree passed
by the I Additional I Judge and JMFC Mysuru in
O.S.No.348/2016 dated 02.08.2018.
4. Brief facts of the case which are utmost necessary for
disposal of the appeal are as under:
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5. The contesting respondent filed a suit in
O.S.No.348/2016 against the appellants herein on the ground
that the husband of the first appellant and father of the second
appellant, late B.M.Mahadevaiah, for the recovery of sum of
Rs.1,60,000/- with interest at 24% p.a., on the basis of a on
demand promisory note executed by the B.M. Mahadevaiah in
favour of the contesting respondent.
6. The suit was decreed ex-parte, noting the fact that
after filing the written statement, appellant did not further
participate in the suit.
7. Thereafter, appellants herein filed an appeal before
the first appellate court in R.A.No.247/2019.
8. Learned Judge in the first appellate court, noting the
fact that the appellants herein did not properly participate in
the suit after the filing of the written statement, in order to
afford fair opportunity for the appellants to contest the suit on
merits, allowed the appeal and remitted the suit to the trial
court with a direction that the defendants shall pay a sum of
Rs.4000/- as cost to the plaintiff and also directed to deposit
NC: 2024:KHC:36144
sum of Rs.2,00,000/- which shall be fixed deposit and the suit
to be tried afresh in accordance with the law after affording
sufficient opportunity for the appellants to contest the suit.
9. The appellants are before this court challenging the
direction of the first appellate court in directing the depositing
of sum of Rs.2,00,000/- which shall be further kept in fixed
deposit.
10. Learned counsel for the appellants reiterated the
grounds urged in the appeal memorandum, contended that for
the liability of the Mahadevaiah, the present appellants cannot
be penalised in directing to deposit sum of Rs.2,00,000/- for
permitting them to contest the suit and sought for allowing the
appeal.
11. Per contra Sri.Prakash, learned counsel for the
respondent/plaintiff supports the impugned order.
12. Having heard the parties, perused the material on
record meticulously. On such perusal of the material on
records, it is crystal clear that the suit was partly contested by
the appellants herein by filing the written statement.
NC: 2024:KHC:36144
However, for the reasons best known to the appellants herein,
they did not further chose to contest the suit either by cross
examining the PW1 or leading the defendants' evidence.
Thereafter, learned judge in the first appellate court, in order to
afford a fair opportunity for the appellants herein, allowed the
appeal of the appellants with a direction to deposit sum of
Rs.2,00,000/-, which shall be kept in the fixed deposit in the
nationalized bank to earn the interest to the successful party to
withdraw, had allowed the appeal. It is that direction, which is
under challenge by the defendants.
13. Learned counsel for the appellants, while reiterating
the grounds, contended that for the liability said to have been
incurred by B.M.Mahadevaiah the legal representatives are
being penalised which is incorrect and is opposed to the
principles of law and sought for allowing the appeal.
14. The contesting respondent has stated, that the
assets of the Mahadevaiah is being enjoyed by the appellants
herein. Therefore, the arguments put forth on behalf of the
appellants, cannot be countenanced in law. It is for the trial
court to decide whether the assets of Mahadevaiah is being
NC: 2024:KHC:36144
enjoyed by the appellants after the thorough trial. If no assets
are available in the hands of the appellants herein, left behind
by Mahadevaiah, it is always open for the defendants to
establish the same in the trial before the trial court. Until such
time to establish the bonafides of the appellants, direction
issued by the first appellate court to deposit sum of
Rs.2,00,000/- which shall be kept fixed deposit is just and
proper.
15. Accordingly, grounds urged in the appeal
memorandum are hardly sufficient to interfere with
discretionary order passed by the first appellant court while
remitting the matter to the trial court.
Hence, the following order.
ORDER
(i) Appeal is merit less and is hereby dismissed
(ii) No order as to the cost.
NC: 2024:KHC:36144
(iii) Parties shall appear before the trial court without
further notice positively on 23.09.2024 and thereafter the trial
court shall proceed with the case in accordance with the law.
Time to deposit of sum of Rs.2,00,000/- is hereby
extended till 21.09.2024.
Sd/-
(V SRISHANANDA)
JUDGE
AKV
CT:SK
