Dismissed

Smt Leela Poojarthy v. Smt Pushpa

Karnataka HC3 Feb 2023CRP/30/2016

Case brief

AI extract

What is this about?

This civil revision petition against an order dismissing a challenge to a cross objection in a partition appeal was heard by the High Court of Karnataka. The Bench found no illegality in the lower court's decision and dismissed the revision. Contention regarding limitation and validity of sale remains open.

What did the court decide?

The civil revision petition stands dismissed. Liberty is reserved for the petitioner to challenge the validity of a sale.

Smt Leela Poojarthy Vs Smt Pushpa — Property and Title | Karnataka HC (2023)

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CRP No. 30 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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CIVIL REVISION PETITION NO. 30 OF 2016 (IO)

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BETWEEN:

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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SMT. LEELA POOJARTHY D/O LATE LINGAPPA POOJARY AGED ABOUT 55 YEARS R/AT SHANKARPURA POST INNANJE ROAD, UDUPI TALUK AND UDUPI DISTRICT.

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…PETITIONER

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(BY SRI H. JAYAKARA SHETTY, ADVOCATE)

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AND:

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SMT. PUSHPA W/O LINGAPPA POOJARY AGED ABUT 65 YEARS RESIDING AT POSARU THOTA HOUSE KATAPADY, MOODABETTU VILALGE, UDUPI TALUK & DISTRICT.

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SMT.SARALA

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D/O THANYARU POOJARTHY AGED ABOUT 71 YEARS RESIDING AT POSAR POST: KATAPADY, MOODABETTU VILALGE, UDUPI TALUK & DISTRICT-576 101.

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…RESPONDENTS

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(BY SRI GANESHA R., ADVOCATE FOR R-1;

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CRP No. 30 of 2016

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SRI NARAYAN M. NAIK, ADVOCATE FOR R-2; V/O DATED 2/3/2020 R2 IS DECEASED)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 14.12.2015 PASSED IN RA.NO.3/2013 ON THE FILE OF THE PRL. DIST., AND SESSIONS JUDGE, UDUPI, DISMISSING THE APPLICATION FILED UNDER SECTION 5 OF LIMITATION ACT, SEEKING CONDONATION OF DELAY IN FILING CROSS OBJECTION DOES NOT SURVIVE.

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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 2nd respondent had filed FDP No.4/2003 for partitioning of the suit schedule property by metes and bounds. The said FDP came to be allowed on 31.5.2012. The 1st respondent challenged the final decree drawn in FDP No.4/2003 by filing an appeal under Section 96 of CPC. When the appeal was posted on 14.12.2015, the 1st respondent filed a memo seeking leave of the Court to withdraw the regular appeal, and thereafter the petitioner also filed cross objection in the said appeal before the First Appellate Authority. The first appellate Court proceeded to dismiss the appeal as not pressed and also dismissed the counter claim filed by the cross objectorpetitioner, against which, the present petition is filed.

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CRP No. 30 of 2016

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Learned counsel appearing for the petitioner submits that cross objection has to be considered independently as specified under Order 41 Rule 22 of CPC. Hence, the impugned order passed by the First Appellate Court is not sustainable in law.

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Learned counsel appearing for the respondent No.2 submits that the cross objection was filed only after the respondent No.1 filed a memo for withdrawal of the appeal, and the cross objection was filed intentionally to protract the appeal, and the First Appellate Court has rightly dismissed the appeal.

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I have considered the submissions made by the

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learned counsel appearing for the parties.

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The respondent No.1 filed a memo seeking leave of the Court to withdraw the appeal, and it is only thereafter, the petitioner filed the cross objection challenging the preliminary decree. The first Appellate Court dismissed the cross objection filed by the petitioner stating that the period of limitation for filing the cross objection has expired, and also the appeal

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CRP No. 30 of 2016

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having been dismissed as not pressed, the same cannot be considered.

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I do not find any illegality or infirmity in the

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impugned order passed by the First Appellate Court.

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Accordingly, the petition stands dismissed.

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Liberty is reserved with the petitioner to challenge the validity of the sale dated 17.7.2014 executed by the 2nd respondent in the manner known to law.

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All contentions including limitation are kept open.

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Sd/JUDGE

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List No.: 1 Sl No.: 36

Smt Leela Poojarthy v. Smt Pushpa

Case brief

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Smt Leela Poojarthy v. Smt Pushpa

Case brief

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