The High Court of Karnataka dismissed a second appeal against the dismissal of an appeal for delay. The court held that the appellant participated in prior proceedings and failed to provide a medical certificate to explain the 512-day delay.
The appeal filed under Section 100 of CPC is dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.603/2017 (PAR)
BETWEEN:
SIMON D’SOUZA, S/O LEGORI D’SOUZA, AGED ABOUT 55 YEARS, R/AT BEEDIPALKE, NAVOOR VILLAGE, BANTWAL TALUK, D.K.-574211.
...APPELLANT
(BY SRI SACHIN B.S., ADVOCATE)
AND:
HENRY FRANCIS D’MELLO, S/O LAWRENCE D’MELLO, AGE 56 YEARS, R/AT MERAMAJALU VILLAGE, BANTWAL TALUK, D.K.-574 211.
...RESPONDENT
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE ORDER DATED 28.02.2017 PASSED ON IA NO.2 IN RA NO.13/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, BANTWAL DISMISSING IA NO.2 FOR DELAY FILED UNDER ORDER XXII RULE 9 OF CPC AND CONSEQUENTLY DISMISSING THE APPEAL AND CONFIRMING THE FINAL DECREE DATED 24.08.2011 PASSED IN FDP NO.1/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE BANTWAL. IN OS NO.116/2000 DRAWING FINAL DECREE IN TERMS OF COMMISSIONER REPORT.
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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission today. Heard the learned counsel for the appellant.
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512 days in filing the appeal. Hence, the present second appeal is filed before this Court.
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No.1/2007 and in FDP No.1/2007, the appellant has participated in the proceedings. To that effect, document is also placed before the Court i.e., Exs.R.1, 4 and 5 and order sheet in FDP is produced as Ex.R2 and the same is noted by the First Appellate Court while considering the application filed for condonation of delay of 512 days. The appellant was represented through the counsel and final decree petition was also drawn and the respondent took the possession of his share in execution and possession was given to the respondent and the appellant was aware of all these proceedings before the Court both in suit and final decree proceedings and also in execution proceedings and filed an appeal and there was a delay of 512 days. No document of medical certificate is produced and the same is not accepted by the First Appellate Court as he was having only headache and comes to the conclusion that not shown any sufficient cause to condone the delay. The appellant participated in the original suit, final decree proceedings and also in execution petition and admittedly possession was also delivered in favour of the respondent in terms of the preliminary decree, final decree and also in execution and delay of 512 days i.e., 15 months is not explained by the appellant. Hence, I do not find any error
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committed by the First Appellate Court in dismissing the appeal on the ground of delay and reasoned order was passed having considered the material available on record. When such being the case, I do not find any ground to invoke Section 100 of CPC to frame substantial question of law and admit the appeal.
following:
ORDER
The appeal is dismissed.
Sd/JUDGE
MD
1 issue framed by the court
Whether the first appellate court committed an error in dismissing the appeal due to a delay of 512 days without sufficient cause.
2 provisions across 1 enactments
Simulation D'Souza
Henry Francis D'Mello
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
