Disposed

Smt. Puttamma v. Sri. Suresh Hegde

Karnataka HC29 Nov 2023CRP/270/2023

Case brief

AI extract

What is this about?

The High Court disposed of a civil revision petition against an order setting aside a 2014 appeal decree. Noting the appellant in that appeal had died before the decree, the Court declared the 2014 decree non-est due to non-impleadment of legal representatives. It remanded the appeal for fresh disposal within six months.

What did the court decide?

Directed the first appellate court to dispose of the underlying appeal within six months to ensure legal representatives are impleaded before final determination.

Smt. Puttamma Vs Sri. Suresh Hegde — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:43407 CRP No. 270 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CIVIL REVISION PETITION NO. 270 OF 2023 (IO)

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BETWEEN:

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SMT. PUTTAMMA W/O. LATE HUCHAPPA, AGED ABOUT 83 YEARS,

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SRI. MUNIYAPPA S/O. LATE HUCHAPPA, AGED ABOUT 57 YEARS,

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SRI. MUNIRAJU. H S/O. LATE HUCHAPPA, AGED ABOUT 50 YEARS,

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SRI. MUNIRAJU @ APPI S/O. LATE HUCHAPPA, AGED ABOUT 47 YEARS,

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. MUNIRATHNAMMA D/O. LATE HUCHAPPA, AGED ABOUT 53 YEARS,

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PETITIONERS NO.1 TO 5 ARE R/AT BEGURU VILLAGE, BEGURU HOBLI, BANGALORE SOUTH TALUK, BANGALORE-560 068. PETITIONERS 1 TO 5 ARE REPRESENTED BY THEIR GPA HOLDER, M/S. GREYBERRY REALTY A REGISTERED PARTNERSHIP FIRM HAVING ITS OFFICE AT CANARA ENCLAVE, JIGANI ROAD, BANNERGHATTA, BANGALORE-560 083, REP. BY ITS MANAGING PARTNER AND AUTHORIZED SIGNATORY

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NC: 2023:KHC:43407 CRP No. 270 of 2023

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MR. SANJEEV HULSANDRA, S/O. PATTABHI KRISHNAMURTHY HULSANDRA

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…PETITIONERS

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(BY SRI. NAVEED AHMED, ADVOCATE)

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AND:

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SRI. SURESH HEGDE S/O. RAGHURAM HEGDE, AGED ABOUT 58 YEARS, RESIDING AT S.H. SHREYA, NO.5, INTERMEDIATE RING ROAD, DOMLUR, BANGALORE-560 071.

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NARAYANAPPA S/O. LATE DODDA ANAYAPPA, AGED ABOUT 50 YEARS,

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MUNIKRISHNA S/O. LATE DODDA ANAYAPPA, AGED ABOUT 49 YEARS,

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SRINIVASA S/O. LATE DODDA ANAYAPPA, AGED ABOUT 47 YEARS,

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AKKAYAMMA D/O. LATE DODDA ANAYAPPA, AGED ABOUT 45 YEARS,

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SALAMMA D/O. LATE CHIKKA ANAYAPPA, AGED ABOUT 72 YEARS,

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AKKAYAMMA D/O. LATE CHIKKAANNAYAPPA, AGED ABOUT 46 YEARS,

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MANJUNATHA S/O. LATE CHIKKA ANAYAPPA, AGED ABOUT 39 YEARS,

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MUNIYAPPA (BOMBAI) S/O. LATE NADUPODU, AGED ABOUT 89 YEARS,

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3 - NC: 2023:KHC:43407 CRP No. 270 of 2023

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SAKARI S/O. LATE NADUPODU, AGED ABOUT 81 YEARS,

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LODAPPA S/O. LATE NADA PODU, AGED ABOUT 62 YEARS,

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AKKAYAMMA D/O. CHIKKAPPAIAH, AGED ABOUT 51 YEARS,

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CHIKKAKKAYAMMA D/O. CHIKKAPPAIAH, AGED ABOUT 50 YEARS,

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KENCHAMMA D/O. CHIKKAPPAIAH, AGED ABOUT 48 YEARS,

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LAKSHMAMMA D/O. CHIKKAPPAIAH, AGED ABOUT 46 YEARS,

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MANJULA D/O. CHIKKAPPAIAH, AGED ABOUT 51 YEARS,

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SMT. MARIRAMMA W/O. SRI. CHIKKAPPAIAH, AGED ABOUT 81 YEARS,

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SMT. HUCHAMMA D/O. LATE MUNIYAPPA, AGED ABOUT 83 YEARS,

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SMT. KADIRAMMA D/O. LATE MUNIYAPPA, AGED ABOUT 69 YEARS,

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SMT. NAGAMMA W/O LATE NARAYANAPPA, AGED ABOUT 62 YEARS,

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SMT. MUNIRATHNA D/O LATE NARAYANAPPA,

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NC: 2023:KHC:43407 CRP No. 270 of 2023

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AGED ABOUT 37 YEARS,

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SRI. MUNIRAJU S/O. LATE NARAYANAPPA, AGED ABOUT 36 YEARS,

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SMT. CHALUVAMMA W/O. LATE GOVINDAPPA, AGED ABOUT 54 YEARS,

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SMT. NAGAMMA @ NAGAVENI D/O. LATE GOVINDAPPA, AGED ABOUT 38 YEARS,

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SRI. MUNIRAJU S/O. LATE GOVINDAPPA, AGED ABOUT 37 YEARS,

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SMT. YELLAMMA D/O. LATE MUNIYAPPA, AGED ABOUT 51 YEARS,

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RESPONDENTS NO.2 TO 26 ARE R/AT BEGURU VILLAGE, BEGURU HOBLI, BANGALORE SOUTH TALUK, BANGALORE-560 068.

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…RESPONDENTS

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(BY SRI. VENKATESH S. ARABATTI, ADVOCATE FOR RESPONDENT NO.1;

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SERVICE OF NOTICE TO RESPONDENT NOS.2 TO 26 ARE DISPENSED WITH)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.03.2023 PASSED IN MISC.NO.82/2022 ON THE FILE OF THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU ALLOWING THE MISCELLANEOUS PETITION FILED UNDER ORDER IX RULE 13 READ WITH SECTION 151 OF CPC.,

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NC: 2023:KHC:43407 CRP No. 270 of 2023

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners have challenged the order dated 07.03.2023 passed by the VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru (henceforth referred to as 'Appellate Court') in Misc.No.82/2022 by which, the petition filed under Order IX Rule 13 read with Section 151 of CPC was allowed and the ex-parte judgment and decree dated 29.03.2014 passed by the Fast Track Court - II, Bangalore Rural District, Bangalore (henceforth referred to as 'First Appellate Court') in R.A.No.248/2011 was set aside.

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The predecessor in title of the petitioners herein filed a suit in O.S.No.1356/2008 before the II Additional Senior Civil Judge, Bangalore Rural District, Bangalore, for partition and separate possession of his share in the suit schedule property. The said suit was dismissed in terms of the judgment and decree dated 30.06.2011. An appeal was filed by him in R.A.No.248/2011 before the First Appellate Court. The First Appellate Court noticed that respondent Nos.1 to 16 therein were absent and notice to respondent No.17 was held to be

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6 - NC: 2023:KHC:43407 CRP No. 270 of 2023

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sufficient and consequently after hearing the parties concerned, allowed the appeal in terms of the judgment and decree dated 29.03.2014. The respondent No.17 in R.A.No.248/2011 claiming that he was not served with the notice of the appeal, filed Misc.No.82/2022 before the Appellate Court. The Appellate Court noticed that respondent No.17 in R.A.No.248/2011 was not served with the notice of the appeal and therefore, allowed the miscellaneous petition and set aside the judgment and decree dated 29.03.2014 passed in R.A.No.248/2011.

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Being aggrieved by the said order, the legal representatives of the deceased - plaintiff/appellant in R.A.No.248/2011 have filed this revision petition.

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The learned counsel for the petitioners contended that the decree in R.A.No.248/2011 was passed in the year 2014, while respondent No.17 therein has filed the present miscellaneous petition in the year 2022 and he did not satisfactorily explain the delay in filing the miscellaneous petition. He further contends that the notice of the appeal was served on respondent No.17 in R.A.No.248/2011 and that the

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NC: 2023:KHC:43407 CRP No. 270 of 2023

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Appellate Court erroneously held that he was not served with the notice. He further contends that a final decree proceedings was initiated based on the judgment and decree passed in R.A.No.248/2011 and by virtue of the belated miscellaneous petition filed by respondent No.17, he has thrown a spanner into the proceedings in FDP No.29/2014.

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Per contra, the learned counsel for respondent No.17 in R.A.No.248/2011 submits that respondent No.17 was not served with the notice of the appeal in R.A.No.248/2011. He further submits that the predecessor of petitioners, who filed R.A.No.248/2011 had expired on 02.11.2013 and therefore, the judgment and decree passed therein on 29.03.2014 was inexecutable as it was passed in favour of a dead person. He therefore, submits that the impugned order passed by the Appellate Court allowing Misc.No.82/2022 does not warrant interference in view of the peculiar facts and circumstances of this case.

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I have considered the submissions made by the

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learned counsel for the petitioners as well as the learned counsel for respondent No.17 in R.A.No.248/2011.

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NC: 2023:KHC:43407 CRP No. 270 of 2023

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As rightly contended by the learned counsel for the petitioners, the appeal filed in R.A.No.248/2011 was decreed on 29.03.2014. The cause-title of the judgment and decree shows that the notice to respondent No.17 was held to be sufficient. However, respondent No.17 long thereafter i.e., after nearly 8 years, filed Misc.No.82/2022 contending that he came to know of the decree passed in R.A.No.248/2011 after he received a notice in FDP No.29/2014. The Appellate Court proceeded to allow the miscellaneous petition and thereby set aside the decree passed in March, 2014. Though the conduct of respondent No.17 is unacceptable, yet this Court cannot ignore the fact that the predecessor of the petitioners had expired on 02.11.2013 and therefore, it was incumbent upon the petitioners to be impleaded in R.A.No.248/2011. Since that is not done, the decree passed on 29.03.2014 is non-est in the eyes of law.

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Therefore, without going into the merits of the contentions urged by the learned counsel for the petitioners, it is appropriate to dispose off this petition by directing the First Appellate Court to dispose off the appeal in R.A.No.248/2011 as expeditiously as possible at any rate within a period of six

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NC: 2023:KHC:43407 CRP No. 270 of 2023

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months from the date of receipt of a certified copy of this order.

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All contentions are left open.

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This petition is disposed off on the above terms.

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In view of disposal of this petition, pending I.As., if

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any, do not survive for consideration and the same stand dismissed.

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Sd/JUDGE

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PMR

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List No.: 1 Sl No.: 44

Smt. Puttamma v. Sri. Suresh Hegde

Case brief

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Smt. Puttamma v. Sri. Suresh Hegde

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