Karnataka High Court
Yogeshwaraiah vs H. M. Marulappa on 27 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1273 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1273 OF 2025 (PAR)
BETWEEN:
YOGESHWARAIAH
S/O H M MARULAPPA
(DIED ON 22/07/2024
AFTER THE DISPOSAL OF R.A.)
REP. BY LEGAL REPRESENTATIVES
1. SMT. ARATHI, W/O LATE YOGESHWARAIAH
AGED ABOUT 47 YEARS
AGRICULTURIST
2. MISS DEEPA, D/O LATE YOGESHWARAIAH
AGED ABOUT 21 YEARS
AGRICULTURIST
Digitally signed 3. MASTER DRUVA H Y
by DEVIKA M
S/O LATE YOGESHWARAIAH
Location: HIGH AGED ABOUT 14 YEARS
COURT OF
KARNATAKA MINOR
REP. BY MOTHER AND NATURAL GUARDIAN
1ST APPELLANT - SMT. ARATHI
W/O LATE YOGESHWARAIAH
AGED ABOUT 47 YEARS
AGRICULTURIST
ALL ARE R/O MARUTHINAGARA
HULIYARU, CHIKKANAYAKANAHALLI TALUK
TUMAKURU DISTRICT-572218
...APPELLANTS
(BY SRI A V GANGADHARAPPA, ADVOCATE)
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RSA No. 1273 of 2025
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AND:
1. H. M. MARULAPPA
S/O LATE MALLAPPA
AGED ABOUT 87 YEARS
AGRICULTURIST
2. SIDDAPPA
S/O H M MARULAPPA
AGED ABOUT 57 YEARS
AGRICULTURIST
BOTH ARE R/O MARUTHINAGARA
HULIYARU
CHIKKANAYAKANAHALLI TAUK
TUMAKURU DISTRICT-572218
3. SMT. M KAMALA
W/O G M UMESH
D/O H M MARULAPPA
AGED ABOUT 50 YEARS
R/O GARUGADAHALLI
PANCHANAHALLI HOBLI
KADURU TALUK
CHIKKAMAGALURU DISTRICT-577182
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE ORDER DATED 23.08.2022 PASSED ON I.A.NO.I IN
F.R.(R.A) NO.10067/2019 ON THE FILE OF V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TIPTUR AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
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RSA No. 1273 of 2025
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ORAL JUDGMENT
Heard the learned counsel appearing for the appellants on
I.A.No.1/2025 wherein prayed to grant a leave to prefer this
appeal as appellants.
2. In support of the application, an affidavit is sworn
to that her husband passed away on 22.07.2024. It is stated in
the affidavit that her husband sustained injuries in the road
accident and death was directly attributed to the said injuries
and related causes. He did not regain his health and only
suffered. The medical treatment obtained by him did not make
any improvement in his health. Now, it is learnt that
respondents have filed FDP No.4/2018 to enforce the
preliminary decree. Now, she came to know that she has to
approach this Court. She is also having tender aged children
and her husband passed away subsequent to the passing of the
judgment in FR(R.A) No.10067/2019 on 23.08.2022 and
consequent upon his death, she has to pursue the remedy
before this Court.
3. For the reasons stated in the affidavit
accompanying to the application, I.A.No.1/2025 is allowed.
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4. Heard on I.A.No.2/2025 wherein prayed this Court
to condone the delay of 989 days in filing this appeal.
5. In the affidavit, same reasons are assigned for
condonation of delay. The other reason assigned for
condonation of delay that now she came to know that she has
to approach the High Court by way of filing second appeal. Her
children are of very tender age and she has to look after them
and she has suffered from COVID from March 2020 to May
2022 and even now, she has not come out of that effects. She
was not doing well and she was suffering from COVID related
ailments. Consequently, there was no money to meet the
litigation expenses and after borrowing the same from her
relatives and well-wishers, this appeal is filed without any loss
of time.
6. Having considered the grounds urged in the
application and also on perusal of the materials available on
record, it disclose that the suit was filed by the father of the
original appellant in the year 2016 in O.S.No.1/2016 against his
children and her husband appeared and filed written statement
in that suit. The Trial Court also framed an Issue that the
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defence was taken that already there was a partition between
plaintiff and defendants under partition deed dated 24.09.2010.
Inspite of the said defence, her husband not contested the
matter and not adduced any evidence and judgment was
passed by the Trial Court on 17.08.2017. The first appeal was
filed in the year 2019 and the same was numbered as FR since
there was a delay of 2 years 4 months and her husband himself
was examined before the First Appellate Court with regard to
delay is concerned taken note of the document of Ex.P1 which
pertains to the year 2011. Ex.P2 shows that appellant is under
investigation and follow up for traumatic head injury with
delayed post traumatic epilepsy. Ex.P3 is also dated
22.10.2012. Having taken note of these documents, the First
Appellate Court comes to the conclusion that the reason
assigned for condonation of delay in filing first appeal is not
satisfactory and dismissed the application filed under Section 5
of the Limitation Act on 23.08.2022. The present second appeal
is filed on 07.08.2025. The records discloses that the original
appellant not contested the suit, even filed the first appeal with
delay of 2 years 4 months and present appeal is filed with delay
of 989 days. It is not in dispute that when the order was
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passed by the First Appellate Court, husband of appellant No.1
was alive and her husband died in the year 2024 and the order
was passed by the First Appellate Court in the year 2022 but
her husband did not take any steps to file the appeal during his
lifetime even though the application filed for condonation of
delay was dismissed by the First Appellate Court. The first
appeal was also with delay of 2 years 4 months and present
appeal is also with delay of 989 days. When the father of the
original appellant had approached the Court for the relief of
partition in the year 2016, at that time, he was aged about 75
years and now it appears to be he is aged about 85 years.
When such materials are available before the Court disclosing
that throughout, the original appellant was not diligent in
contesting the case even though written statement was filed in
the original suit and appeal also filed belatedly with the delay of
2 years 4 months. The present appeal is also filed almost after
3 years. When such being the case, it is not a case to condone
the delay since the reason assigned in the application is not
satisfactory and each day delay has not been explained. When
there is no sufficient cause shown to condone the delay, the
question of condoning the delay of 989 days does not arise.
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7. The Apex Court also in the recent judgment
reported in 2025 SCC Online SC 1969 in the case of
Shivamma (Dead) by Lrs., vs. Karnataka Housing
Board and others in paragraphs 140, 141, 142 categorically
held that a lethargic litigant cannot be encouraged while
condoning the delay unless the delay is explained properly and
each day delay ought to have been explained and without
considering the sufficient cause for condoning the delay, the
matter cannot be considered on merits. In the case on hand,
there was a delay of 989 days in filing the appeal and the same
is not explained satisfactorily. Hence, I do not find any ground
to allow the application. Accordingly, I.A.No.2/2025 is rejected.
Consequently, the second appeal is dismissed.
8. In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
