Dismissed

Smt. Sakeera John v. Sri. Poojari Basappa

Karnataka HC3 Nov 2023MSA/120/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed this Miscellaneous Second Appeal as not maintainable because the first appellate court did not remit the case for reconsideration under Order XLI Rules 23 or 23A of the CPC. The court directed the appellant to file an appropriate application before the First Appellate Court.

What did the court decide?

The appeal is dismissed as not maintainable; the appellant is allowed to take other steps available under law.

Smt. Sakeera John Vs Sri. Poojari Basappa — Civil Procedure and Limitation | Karnataka HC (2023)

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1 - NC: 2023:KHC:39139 MSA No. 120 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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MISCELLANEOUS SECOND APPEAL NO. 120 OF 2023 (DEC/INJ)

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BETWEEN:

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SMT. SAKEERA JOHN, W/O UMMER KHAN, AGED ABOUT 54 YEARS, OCC: AGRICULTURIST, RESIDENT OF KEREBILICHI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT.

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…APPELLANT

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(BY SRI. RAHAMATHULLA KOTHWAL, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. POOJARI BASAPPA, S/O. POOJARAPPA, AGE: MAJOR, 89 YEARS, RESIDENT OF SOMALAPURA VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT.

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…RESPONDENT THIS MSA IS FILED UNDER SECTION 100 OF THE CR.P.C. 1908 PRAYING TO CALL FOR RECORDS IN REGULAR APPEAL NO.62/2010 ON THE FILE OF APPELLATE COURT - COURT OF CIVIL JUDGE (SENIOR DIVISION) AND C.J.M., CHANNAGIRI AND ALSO THAT OF THE RECORDS IN O.S. NO.355/1995, ON THE FILE OF THE CIVIL JUDGE COURT (JUNIOR DIVISION) AND J.M.F.C. AT CHANNAGIRI.

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NC: 2023:KHC:39139 MSA No. 120 of 2023

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

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JUDGMENT

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This Miscellaneous Second Appeal is filed challenging the judgment and decree passed by the trial Court in OS.No.355/1995 and the order dated 06.01.2011 by which the regular appeal was dismissed as having abated. The registry has raised a question regarding maintainability of this appeal under Order XLIII Rule 1(u) of the CPC .

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The Appellate Court did not remit the case back to the trial Court for reconsideration under Order XLI Rule 23 or 23A of CPC. Therefore, a Miscellaneous Second Appeal under Order XLIII Rule 1(u) of CPC was not maintainable.

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In that view of the matter, this Miscellaneous Second Appeal is not maintainable against the impugned order passed by the First Appellate Court. It was for the appellant to file appropriate application before the First Appellate Court for setting aside the abatement of the appeal in accordance with law.

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NC: 2023:KHC:39139 MSA No. 120 of 2023

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In that view of the matter, the appeal is dismissed as

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not maintainable. It is however, open for the appellant to take such other steps are available under law.

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Sd/JUDGE

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PK CT: BHK