Dismissed

B H Rangaswamy v. B H Srinivas

Karnataka HC20 Jun 2023RFA/740/2016

Case brief

AI extract

What is this about?

Appeal by legal representatives of a deceased first defendant against a partition decree was dismissed. The High Court held that since the defendant actively contested the suit and did not raise any objection for over eleven months after the decree, the appeal is not maintainable.

What did the court decide?

Appeal dismissed on both grounds of delay and merit; interlocutory applications disposed of.

B H Rangaswamy Vs B H Srinivas — Partition | Karnataka HC (2023)

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NC: 2023:KHC:21171 RFA No. 740 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

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REGULAR FIRST APPEAL NO. 740 OF 2016 (PAR)

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BETWEEN:

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Digitally signed by YASHODHA N Location: HIGH COURT OF KARNATAKA

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B.H.RANGASWAMY SINCE DEAD BY LRS

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SMT. JAGADAMBA W/O LATE B.H.RANGASWAMY AGED ABOUT 57 YEARS

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SMT. R.SHEETHAL W/O B.M.HARISH D/O LATE B.H.RANGASWAMY AGED ABOUT 37 YEARS

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APPELLANTS NO. 1 AND 2 ARE R/AT NO.54/6, KUPPALUR VILLAGE MYSURU TALUK AND DISTRICT-570 005. …APPELLANTS

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(BY SHRI. P. NATARAJU, ADVOCATE)

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AND:

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B.H.SRINIVAS S/O P.HANUMANTHA SETTY AGED ABOUT 65 YEARS R/AT NO.54/6 KUPPALUR VILLAGE MYSURU TALUK AND DISTRICT-570 005.

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NC: 2023:KHC:21171 RFA No. 740 of 2016

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2. INDIAN BANK

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NO.1771, PATEL ROAD YESHASH BUSINESS POINT MYSURU-570 001. REPRESENTED BY ITS BRANCH MANAGER

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3. R.BASANTH

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S/O LATE B.H.RANGASWAMY AGED ABOUT 28 YEARS R/AT NO.953, 4^TH CROSS VRUSHABHAVATHI NAGAR KAMAKSHIPALYA

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BENGALURU-560 079. …RESPONDENTS

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(BY SHRI. G. BALAKRISHNA SHASTRY, ADVOCATE FOR R1; R2 AND R3 ARE SERVED BUT UNREPRESENTED)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 02.07.2012 PASSED IN O.S.NO.199/2009 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, MYSORE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS RFA, COMING ON FOR ORDERS , THIS DAY, P.S.DINESH KUMAR, J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is under Section 96 of the Code of Civil

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Procedure by the legal representatives of deceased first defendant is directed against judgment and decree dated 02.07.2012 in O.S.No.199/2009 passed by the learned II Additional Senior Civil Judge, Mysore.

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Parties shall be referred as per their status in the trial Court.

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NC: 2023:KHC:21171 RFA No. 740 of 2016

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Heard Shri P.Nataraju, learned Advocate for the appellants and Shri G.Balakrishna Shastry, learned Advocate for first respondent. Though served, none appeared for respondents No.2 & 3.

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Briefly stated the facts of the case are, first respondentplaintiff instituted the instant suit for partition. His brother, Rangaswamy (first defendant) appeared through his advocate. After full-dressed trial, the suit has been decreed. This appeal is presented on 22.04.2016 along with an application for condonation of delay of 1300 days.

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Shri Nataraju submitted that appellants learnt about the decree when they received a notice in FDP No.47/2015. Therefore, delay is bonafide and prays for condonation of delay.

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Shri Balakrishna Shastry submitted that the first defendant in the suit had appeared in the trial court through his advocate. He passed away nearly eleven months after the decree. He did not choose to contest the suit nor challenge the decree. Therefore, appeal by his legal representatives is not maintainable and prayed for it’s dismissal.

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NC: 2023:KHC:21171 RFA No. 740 of 2016

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We have carefully considered rival submissions and perused records.

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The judgment shows that first defendant was

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represented through an advocate. The suit has been decreed on 02.07.2012. It is stated in the affidavit that first defendant passed away on 30.06.2013. The suit has been presented on 22.04.2016. The only reason stated in para 3 of the affidavit is that the legal representatives of first defendant learnt about the suit only on receipt of summons in the FDP. There is considerable force in the contention urged by Shri Shastry that first defendant did not choose to contest the suit nor file an appeal during his life time. The factual matrix is not in dispute. The legal representatives of the deceased first defendant cannot maintain this appeal, because the first defendant has accepted the decree. The reasons mentioned for the delay are not satisfactory.

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In view of the above, the appeal stands dismissed both one the aspects of delay and merit. Consequently, I.A.No.1/2021 also stands dismissed.

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NC: 2023:KHC:21171 RFA No. 740 of 2016

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In view of dismissal of this appeal, pending

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interlocutory applications do not survive for consideration and they stand disposed of.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE

List No.: 1 Sl No.: 28

B H Rangaswamy v. B H Srinivas

Case brief

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B H Rangaswamy v. B H Srinivas

Case brief

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