Dismissed

Subray Eshwar Baht v. Smt Parvathi

Karnataka HC9 Mar 2017RSA/2436/2007

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a second regular civil appeal (RSA) held not to survive. The court ruled that the underlying first appeal was withdrawn and compromise terms required withdrawal of the second appeal, which appellants failed to effect. The appeal was also noted as impermissible in the name of a deceased appellant.

What did the court decide?

The second appeal RSA No. 2436/2007 is dismissed as it does not survive the compromise withdrawal and underlying appeal.

Subray Eshwar Baht Vs Smt Parvathi — Civil Procedure and Limitation | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF MARCH, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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R.S.A. NO. 2436/2007 (PAR)

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BETWEEN:

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SUBRAY ESHWAR BHAT, AGED ABOUT 55 YEARS, S/O ESHWAR BHAT,

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SRIDHAR BHAT, AGED ABOUT 48 YEARS, S/O ESHWAR BHAT,

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VENKATARAM BHAT, AGED ABOUT 58 YEARS, S/O ESHWAR BHAT,

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RAMACHANDRA BHAT, AGED ABOUT 50 YEARS, S/O. ESHWAR BHAT,

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ALL ARE R/AT NADUGULU, TADAGUNI VILLAGE, SIRSI TALUK, UTTARA KARNATAKA DISTRICT 581403.

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... APPELLANTS

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(BY SRI. RAVI V HOSMANI, ADVOCATE)

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AND

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SMT. PARVATHI W/O GANAPATI BHAT, AGE MAJOR, R/O GUDDEMANE,

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SIDDAPUR TALUK, KARWAR DISTRICT 581403.

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SMT. INDIRA W/O HARISHANDRA HEGDE, AGE MAJOR, R/O ILIMANE, SIDDAPUR TALUK, 581403.

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SMT. SARASWATI W/O PARAMESHWAR HEGDE, AGE MAJOR, R/O GOUNDALLI SIRSI TALUK, 581403.

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SMT. YAMUNA W/O BEERANNA NAIK, AGE MAJOR, ANAGERI, ANKOLA TALUK KARWAR DIST, 581403.

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SMT. KAMALA W/O ESHWAR BHAT, AGE MAJOR, R/O GOUDALLI SIRSI TALUK 581403.

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GANGADHAR S/O ESHWAR BHAT, AGE MAJOR, GOUNDALLI, SIRSI TALUK 581403.

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SMT GIRIJA W/O SADASHIV BHAT, AGE MAJOR, R/O MUDDINPAL, SIRSI TALUK, KARWAR DIST 581403

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GANGADHAR S/O ESHWAR BHAT, AGED ABOUT 40 YEARS, R/O MUDDINAPAL,

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SIRSI TALUK, KARWAR DIST 581403.

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GANAPATI S/O SUBRAY BHAT, AGED ABOUT 72 YEARS, R/O TADUGUNI VILLAGE, SIRSI TALUK, 581403.

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VISHWANATH S/O SUBRAY BHAT, AGED ABOUT 68 YEARS, R/O TADUGUNI VILLAGE, SIRSI TALUK, 581403.

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... RESPONDENTS

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(BY SRI. RAVI N CHIKKARADDAR, ADVOCATE FOR R1 -R8)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 17.07.2007, PASSED IN R.A.NO 72/96, ON THE FILE OF THE CIVIL JUDGE (SR.DN), SIRSI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 03.08.1996, PASSED IN O.S.109/86, ON THE FILE OF THE CIVIL JUDGE (JR.DN) SIRSI.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, THIS COURT, DELIVERED THE FOLLOWING:

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ORDER

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Appellants’ counsel is present. He prays for time to take steps in respect of the legal representatives of deceased 3^rd appellant, Venkataram Bhat.

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The respondent’s counsel submits that this appeal does not survive for the following reasons:-

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When the appeal RA No.23/2012 was pending before the Senior Civil Judge, Sirasi, a compromise was recorded before the Lok Adalath. To that compromise, the Ramachandra Eshwar Bhat and Shridhar Eshwar Bhat, appellants No.4 and 2 respectively in this appeal were parties. Likewise, the legal representatives of appellant No.3, Venkataram Bhat were also parties. According to one of the terms of the compromise i.e. term No.7, these appellants, who were respondents in RA No.23/12 agreed for withdrawing the appeal RSA No.2436/2007. But they did not withdraw. Then the 1^st appellant namely Subray Eshwar Bhat withdrew the appeal RA No.72/1996, the judgment which has been challenged in this second appeal. Therefore, he could not have preferred this second appeal at all. Therefore, it is submitted that this appeal does not survive at all.

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The learned counsel for the appellant does not dispute this compromise and the effect of withdrawal of the appeal RA 72/1996 by Subray Eshwar Bhat in this RSA.

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The above submission made by learned counsel for appellant appears to be tenable. It can also be seen from the

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certified copy of the compromise in RA No.23/2012 that Venkataram Eshwar Bhat, who is shown as appellant No.3 in this appeal was not alive even on that day and therefore, this second appeal could not have been filed in his name. Since there is a clause in the compromise petition that this regular second appeal should be withdrawn by the appellants herein, I do not think that this appeal survives any longer. Therefore, this appeal is dismissed.

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Sd/JUDGE

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yan

Subray Eshwar Baht v. Smt Parvathi

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Subray Eshwar Baht v. Smt Parvathi

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