The Court dismissed an application to condone a delay of 3413 days in filing a second appeal against a partition decree. Finding the reasons insufficient and alleging negligence, the Court rejected the plea and dismissed the appeal.
IA No.1 filed under Section 5 of Limitation Act dismissed; Appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2017
BEFORE
THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO. 5435/2012 (PART. & SEP POSS)
BETWEEN:
... APPELLANTS
(BY SRI. A R PATIL, ADVOCATE)
AND
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4A) CHANNAVVA W/O RAYAGOUDA KEMPI, AGE: 58 YEARS, OCC: HOUSEWIFE, R/O: KEMPAVAD, TQ: ATHANI, DIST: BELGAUM.
4B) PARASAPPA S/O RAYAGOUDA KEMPI, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: KEMPAVAD, TQ: ATHANI, DIST: BELGAUM.
4C) SHRISHAIL S/O RAYAGOUDA KEMPI, AGE: 28 YEARS, OCC: AGRICULTURE, R/O: KEMPAVAD, TQ: ATHANI, DIST: BELGAUM.
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TQ: ATHANI, DIST: BELGAUM.
... RESPONDENTS
THIS APPEAL IS FILED. U/S. 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.09.2002 PASSED IN R.A.NO.45/1995 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & ASST. SESS. JUDGE, ATHANI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT DATED 22.01.1991 AND THE DECREE PASSED IN O.S.NO.454/1989 ON THE FILE OF THE MUNSIFF, ATHANI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THIS COURT, DELIVERED THE FOLLOWING:
JUDGMENT
There is a delay of 3413 days in filing the appeal. Appellant No.2, Ravasab has sworn to an affidavit and stated that the respondent No.1 and 2 herein filed a suit for partition and separate possession, which was numbered as O.S.No.63/1987. The said suit was thereafter transferred to the Court of Munsiff Athani and that he did not have the knowledge of transfer of the suit to Athani. At Athani Court, the suit was re-numbered as OS No.454/1989 and it was decreed on 22.01.1991. Challenging the judgment and decree dated 22.01.1991, the appellants herein preferred an
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appeal RA No.45/95 before the Senior Civil Judge, Athani. The said appeal was also dismissed by confirming the judgment and decree passed by the Munsiff Court. It is stated that when the appeal was pending, there were attempts to compromise the matter and therefore, the appellants did not show any interest in the case under the impression that settlement would take place. Therefore, they did not go to the Court. Their counsel also did not argue the matter at all. Ultimately, this appeal came to be dismissed on 13.09.2002. Some reference is also made to Miscellaneous proceedings No.10/2006 for recalling the order passed in FDP No. 23/1991.
If the entire affidavit is seen, it does not become clear as to what these appellants were doing after the regular appeal was dismissed on 13.09.2002. According to them, there was a compromise and even final decree proceedings initiated pursuant to the decree came to be dismissed for nonprosecution. So this must be reason for the appellants not evincing any interest to file the appeal within time.
Heard the learned counsel for the appellants and respondents. The appellants counsel submits that actually
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the appellants here in this second appeal did not attend the First Appellate Court for the reason that the matter was compromised between the parties. The said appeal should have been dismissed for default, instead the First Appellate Court dismissed the appeal on merits. The appellants have given sufficient reasons for condoning the delay. Therefore the appeal needs to be condoned.
The respondents counsel opposed the condonation of delay by submitting that the reasons given by the appellants are not sufficient and the appellants have sworn false to the affidavit.
Hearing the leaned counsels for the parties, it can be said that the appellants have not given sufficient reasons for condonation of delay. They may refer to some compromise that might have taken place. If the parties have compromised, they can share the property in terms of the compromise. It appears that even the final decree proceedings was dismissed in view of the compromise. So, what is forthcoming is inordinate delay as well as negligence on the part of the appellants in approaching the court. When negligence can be palpably made out, Court cannot exercise
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discretion to condone delay. Therefore, delay cannot be condoned.
Accordingly, IA No.1 filed under Section 5 of Limitation Act stands dismissed and the appeal also stands dismissed.
Sd/JUDGE
yan
3 issues framed by the court
Whether delay of 3413 days in filing the second appeal can be condoned under Section 5 of the Limitation Act.
Whether the apprehension of compromise between parties constitutes sufficient cause for condoning inordinate delay.
What is the final disposition of the second appeal and the interim application for condonation of delay.
BALAGOUDA S/O MALAGOUDA KEMPI
RAOSAHEB S/O MALAGOUDA KEMPI
SUSHILA W/O SHANKARGOUDA PATIL
SHRI. IRAGOUDA @ VEERAGOUDA S/O RAMAGOUDA KEMPI
BHAGUBAI W/O RAMAGOUDA KEMPI
SHIVAGOUDA S/O PARAGOUDA KEMPI
SREENIVAS HARISH KUMAR
As recorded by the court registry
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