Dismissed

Sri Shivashankaraiah v. Smt. B N Netravathi

Karnataka HC10 Oct 2023RFA/662/2022

Case brief

AI extract

What is this about?

A third party under a partition suit filed a Regular First Appeal challenging a compromise decree and sought leave to appeal and stay. The Court held that proper recourse is an application under Order XXIII Rule 3A CPC before the trial court, dismissing the appeal and stay applications.

What did the court decide?

I.A. No. 2/2022 seeking leave to file appeal dismissed; main appeal dismissed with liberty to file an application under Order XXIII Rule 3A CPC before the trial Court; I.A. No. 1/2022 seeking stay dis

Sri Shivashankaraiah Vs Smt. B N Netravathi — Partition | Karnataka HC (2023)

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NC: 2023:KHC:36726 RFA No. 662 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO.662 OF 2022

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BETWEEN:

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SRI SHIVASHANKARAIAH S/O REVANASIDDAIAH 48 YEARS, R/AT ANEKONDA, OPP B.D.O. OFFICE, BASAVESWARA TEMPLE ROAD, DAVANAGERE - 577 002.

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…APPELLANT

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(BY SRI. HAREESH BHANDARY T, ADVOCATE)

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AND:

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Digitally signed by MADHURI S Location: High Court of Karnataka

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SMT. B N NETRAVATHI D/O NAGARAJAPPA W/O B.K.MAHADEVAPPA AGED ABOUT 36 YEARS, AGRI/HOUSEHOLD, R/O BASAVANAHAL VILLAGE,

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DAVANAGERE TALUK - 577 002.

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SMT. SUMANGALAMMA W/O LATE B.K.NAGARAJAPPA AGED ABOUT 55 YEARS, R/O BASAVANAHAL VILLAGE, DAVANAGERE TALUK - 577 002.

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SRI. B.K.CHANNABASAPPA S/O LATE B.K.NAGARAJAPPA AGED ABOUT 36 YEARS, R/O BASAVANAHAL VILLAGE, DAVANAGERE TALUK - 577 002.

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NC: 2023:KHC:36726 RFA No. 662 of 2022

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SRI. B.K.VIJAYAKUMAR S/O LATE B.K.NAGARAJAPPA AGED ABOUT 34 YEARS, R/O BASAVANAHAL VILLAGE, DAVANAGERE TALUK - 577 002.

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SRI.B.K.GANESH S/O LATE B.K.NAGARAJAPPA AGED ABOUT 32 YEARS, R/O BASAVANAHAL VILLAGE, DAVANAGERE TALUK - 577 002.

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…RESPONDENTS

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(BY SMT. VIJAYA M N, ADVOCATE FOR R2 AND R5; R1, R3 AND R4 ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULES 1 AND 2 OF CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 18.12.2021 MADE ON IA NO.II JOINT COMPROMISE PETITION IN O.S.NO.339/2021 BY THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANAGERE, IN THE INTEREST OF JUSTICE.

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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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I.A.No.2/2022 is filed by third party to the suit seeking permission to file this appeal contending that the property of the appellant has been included by

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respondents in O.S.No.339/2021 for partition and got compromised the case under Order XXIII Rule 3 of CPC and hence, prayed for permission. I.A.No.1/2022 is filed

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NC: 2023:KHC:36726 RFA No. 662 of 2022

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seeking stay of the impugned judgment of compromise decree passed by the trial Court.

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Having heard the learned counsel for the parties and perused the records, it is well settled position of law that in a compromise decree obtained by the parties in the suit by filing an application under Order XXIII Rule 3 of CPC, the recourse available to the parties as well as the third party is to file an application under Order XXIII Rule 3A of CPC for setting aside the compromise decree and to challenge the same before the same Court which has decreed the suit.

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Accordingly, question of granting

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permission/leave to file an appeal by the third party to the suit to challenge the compromise decree before this Court does not arise. Hence, I.A.No.2/2022 seeking leave is dismissed.

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Consequently, appeal is dismissed with liberty

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to file an application under Order XXIII Rule 3A of CPC

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4 - NC: 2023:KHC:36726 RFA No. 662 of 2022

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before the same Court which has delivered the

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compromise decree.

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In view of dismissal of I.A.No.2/2022 and the main appeal, I.A.No.1/2022 seeking stay does not survive for consideration. Accordingly, the same is dismissed.

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Sd/JUDGE

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MDS List No.: 1 Sl No.: 18

Sri Shivashankaraiah v. Smt. B N Netravathi

Case brief

What is this about?

What did the court decide?

Sri Shivashankaraiah v. Smt. B N Netravathi

Case brief

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