Karnataka High Court
Basangoud S/O Shankargouda Patil Since ... vs Veerangouda S/O Fakkirgouda Patil ... on 27 October, 2025
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WP No. 102033 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 27TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 102033 OF 2025 (GM-CPC)
BETWEEN:
BASANGOUD S/O SHANKARGOUDA PATIL,
SINCE DECEASED BY HIS LR'S.,
1. RAYANGOUDA S/O SHANKARGOUDA PATIL,
AGE. 56 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVLUR ROAD,
DHARWAD-580 001.
2. SADANANDGOUDA S/O SHANKARGOUDA PATIL,
AGE. 53 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVLUR ROAD,
DHARWAD-580 001.
3. NINGANGOUDA S/O SHANKARGOUDA PATIL,
Digitally signed by
CHANDRASHEKAR
AGE. 81 YEARS, OCC. AGRICULTURE,
LAXMAN KATTIMANI
Location: HIGH
COURT OF
R/O. HEBBALLI AGASI, NAVLUR ROAD,
KARNATAKA
DHARWAD BENCH
DHARWAD-580 001.
KENCHANGOUDA S/O SHANKARGOUDA PATIL,
SINCE DECEASED BY HIS LR'S.,
4. SMT. BASAVVA W/O KENCHANGOUDA PATIL,
AGE. 76 YEARS, OCC. HOUSE WIFE,
R/O. TADAKOD ONI, RAVIVAR PETE,
DHARWAD-580 001.
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5. SHIVANGOUDA @ BABU S/O KENCHNGOUDA PATIL,
AGE. 59 YEARS, OCC. BUSINESS,
R/O. TADAKOD ONI, RAVIVAR PETE,
DHARWAD-580 001.
6. NINGANGOUDA S/O KENCHNGOUDA PATIL,
AGE. 55 YEARS, OCC. BUSINESS,
R/O. TADAKOD ONI, RAVIVAR PETE,
DHARWAD-580 001.
7. SMT. RENUKA @ BABY W/O SHANKARGOUDA PATIL,
AGE. 51 YEARS, OCC. HOUSE WIFE,
C/O. NAGANGOUDA SHANKARGOUDA PATIL,
DODD ONI, NAGSHETTIKOPPA,
HUBBALLI-580 023.
8. MANJUNATH S/O NINGANGOUDA PATIL,
AGE. 43 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVALURU ROAD,
DHARWAD-580 001.
9. SHANKARGOUDA S/O NINGANGOUDA PATIL,
AGE. 41 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVALURU ROAD,
DHARWAD-580 001.
10. BASANGOUDA S/O NINGANGOUDA PATIL,
AGE. 39 YEARS, OCC. AGRICULTURE,
R/O. HEBBALLI AGASI, NAVALURU ROAD,
DHARWAD-580 001.
... PETITIONERS
(BY SRI. V.M. SHEELVANT, ADVOCATE)
AND:
VEERANGOUDA S/O FAKKIRGOUDA PATIL,
SINCE DECEASED BY HIS LR'S.,
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WP No. 102033 of 2025
HC-KAR
1. VEERESHGOUDA GURANGOUDA PATIL,
AGE. 40 YEARS, OCC. AGRICULTURE,
R/O. HAROBELAVADI,
TQ. AND DIST. DHARWAD-580 001.
2. SUNIL @ SUNILGOUDA S/O BASANGOUDA PATIL,
AGE. 35 YEARS, OCC. AGRICULTURE,
R/O. HAROBELAVADI,
TQ. AND DIST. DHARWAD-580 001.
3. GURUANGOUDA S/O SHIVANGOUDA PATIL,
AGE. 61 YEARS, OCC. AGRICULTURE,
R/O. HAROBALAVADI,
TQ. AND DIST. DHARWAD-580 001.
4. SMT. SUVARANA W/O DAVANGOUDA PATIL,
AGE. 53 YEARS, OCC. HOUSE WIFE,
C/O. HIREMATH (KSRTC), CHANDRABIMB,
VINAYAK NAGAR, 3RD CROSS, SAI NAGAR,
DHARWAD-580 001.
5. UMESHGOUDA S/O DAVANGOUDA PATIL,
AGE. 34 YEARS, OCC. STUDENT,
C/O. HIREMATH (KSRTC),
CHANDRABIMB, VINAYAK NAGAR,
3RD CROSS, SAI NAGAR, DHARWAD-580 001.
6. RENUKA S/O DAVANGOUDA PATIL,
AGE. 35 YEARS, OCC. STUDENT,
C/O. HIREMATH (KSRTC),
CHANDRABIMB, VINAYAK NAGAR,
3RD CROSS, SAI NAGAR, DHARWAD-580 001.
7. RAMESHGOUDA S/O DAVANGOUDA PATIL,
AGE. 33 YEARS, OCC. STUDENT,
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C/O. HIREMATH (KSRTC), CHANDRABIMB,
VINAYAK NAGAR, 3RD CROSS, SAI NAGAR,
DHARWAD-580 001.
8. AKKAVVA GURANGOUDA PATIL,
AGE. 49 YEARS, OCC. HOUSE WIFE,
C/O. KUMAR KAGINALLI, SHIVAGANGA NAGAR,
KAMATHI PLOT, NEAR MURGAMATH MAIDHAN,
DHARWAD-580 001.
9. SUMAKKA W/O BASANGOUDA PATIL,
AGE. 45 YEARS, OCC. HOUSE WIFE,
C/O. KUMAR KAGINALLI, SHIVAGANGA NAGAR,
KAMATHI PLOT, NEAR MURGAMATH MAIDHAN,
DHARWAD-580 001.
10. BASANGOUDA S/O FAKKIRGOUDA PATIL,
AGE. 88 YEARS, OCC. HOUSE WIFE,
C/O. KASABA ONI, SHUKRAVAR PETH,
DHARWAD-580 001.
... RESPONDENTS
(BY SRI. ARUN L. NEELOPANT, ADVOCATE FOR R1 AND R2;
NOTICE TO RESPONDENTS 3 TO 10 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION AND QUASH THE ORDER DATED
15/02/2025 ON I.A. NO.16 PASSED BY THE 1ST ADDITIONAL
SENIOR CIVIL JUDGE AND CJM DHARWAD IN O.S. NO.567/2014
PRODUCED AT ANNEXURE-G THE INTEREST OF JUSTICE AND
EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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ORAL ORDER
(PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE)
This petition is filed assailing the order permitting the
plaintiff to withdraw the suit with liberty to file an application
as advised in law.
2. The operative portion of the order reads as under:
"Application filed by the plaintiff U/O-XXIII Rule-1(3)
R/w Sec.151 of CPC is hereby allowed.
Consequently, suit of the plaintiff is hereby
dismissed as withdrawn.
It is made clear that plaintiff is at liberty to file
appropriate application as prayed for within the statutory
frame work.
Accordingly, the case is disposed off."
3. It is noticed that the suit in O.S.No.567/2014 on
the file of I Additional Senior Civil Judge, Dharwad is filed
challenging the compromise decree passed in
O.S.No.41/2003. The plaintiff in O.S.No.567/2014 is a party to
the suit in O.S.No.41/2003.
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4. Application is filed to withdraw the suit on the
premise that the suit challenging the compromise decree is
not maintainable and sought liberty to file an application
before the very Court, which passed the compromise decree.
5. Learned counsel for the petitioners would urge that
the Court has no jurisdiction to grant liberty to file the
application as Order XXIII Rule 1 of the Code of Civil
Procedure ('Code' for short) does not use the expression
'application'. It uses the expression 'the suit'.
6. In addition, he would also urge that the suit can be
permitted to be withdrawn with liberty to file a suit, provided
the first suit should fail for formal defect and the plaintiff who
sought permission to file an application has not specified as to
what is the formal defect. He would also submit that the Court
had no jurisdiction to entertain the suit as such, the suit was
not maintainable and the fact that the suit is not maintainable
cannot be treated as a formal defect.
7. In support of his contention, he placed reliance on
the judgment of Apex Court in K.S.Bhoopathy and others v.
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Kokila and others1 and also on the judgment of Orissa High
Court in Khatuna and another v. Ramsewak Kashinath
and another2 and also the judgment of Andhra Pradesh High
Court in Somalraju v. Samanthu Sivaji Ganesh and
another3.
8. Learned counsel appearing for the respondents
would urge that the suit to challenge the compromise decree
is not maintainable as the plaintiffs in the said suit were also
the parties to the compromise decree. The remedy for the
plaintiff was to file an application before the same Court,
which passed the compromise decree. However without
noticing this aspect, the suit was inadvertently filed and that
was pursued. After realizing that the suit is not maintainable,
application is filed to withdraw the suit with liberty to file fresh
suit. Thus, he would urge that the Trial Court is justified in
granting the liberty, filing the application as the suit was not
maintainable before the Trial Court.
(2000) 5 SCC 458
AIR 1986 Ori 1
AIR 2009 AP 12
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9. This Court has considered the contentions raised at
the bar and perused the records.
10. The fact that the earlier decree was a compromise
decree passed by the competent Civil Court is not in dispute.
The Code prohibits a separate suit to challenge the
compromise decree. It is well settled position of law that the
person agreed by the compromise decree has to file an
application to recall the said decree or to set aside the said
decree. This being the position, the plaintiffs who filed the suit
challenging the compromise decree moved an application
seeking leave of the Court to withdraw the suit and to file an
application.
11. Though the learned counsel Sri V.M.Sheelvant
would refer to the judgment of the Apex Court in K.S.
Bhoopathy supra, it is noticed from the said judgment that
the Apex Court has held that the application seeking
withdrawal of suit to file a separate suit on the original cause
of action has to be considered cautiously and the application
cannot be allowed and liberty cannot be granted in a routine
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manner. Said judgment does not deal with the fact situation
obtained in the present case.
12. The judgment of the Andhra Pradesh High Court
and Orissa High Court referred to supra have held that the
liberty cannot be granted to file an application and liberty can
only be granted to file a suit as the word 'application' is not
found in Order XXIII Rule 1 of Code. The Orissa High Court
has also held that the fact that the suit is not maintainable is
not a formal defect.
13. It is required to be noticed that Order XXIII Rule 2
of Code does not revive the limitation even in case the liberty
is granted to the plaintiff to file a fresh suit.
14. It is no doubt true that the word application is not
found in Order XXIII Rule 1(3) of Code and on a plain reading,
it would indicate that the permission can be granted only to
file a fresh suit. However, it is required to be noticed that the
plaintiff cannot file a fresh suit as the suit itself is barred.
Hence, the remedy for the plaintiff is only to file an
application.
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15. Assuming that the plaintiff had withdrawn the suit
without seeking the liberty, still the plaintiff can file an
application to set aside the decree and he has to make out the
reason as to why the decree has to be set aside. It appears to
be on safer side, the plaintiff had filed an application seeking
liberty to file an application on the same cause of action.
16. This Court is of the view that since the suit itself
was not maintainable, the plaintiff is justified in not pursuing
the suit, which he has filed to challenge the compromise
decree. The remedy for the plaintiff is to file an application
and same is now granted by the Trial Court.
17. It is to be observed that merely because the liberty
is granted to the plaintiff; it does not mean that the plaintiff
has made out a case to set aside the decree. It also does not
mean that the limitation, if any, for the plaintiff to challenge
the compromise decree is saved or condoned by the Trial
Court.
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18. The Order XXIII Rule 2 of Code has to be borne in
mind while considering the application, if any, filed by the
respondent to set aside the compromise decree.
19. Under these circumstances, this Court does not
find any reason to set aside the order.
20. It is submitted that the application is already filed.
Same shall be considered keeping in mind the observations
made in this case.
21. Writ petition is disposed of.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CLK
CT:BCK
