Allowed

Smt.Siddamma.a v. Sri.Subbappa

Karnataka HC19 Nov 2024CRP/193/2023

Case brief

AI extract

What is this about?

Defendant No.3, who participated in final decree proceedings after an ex parte preliminary decree in a partition suit, filed a delayed Order IX Rule 13 CPC application to restore the suit, which the Trial Court allowed despite unexplained delay. The High Court held restoration impermissible after final decree and possession, set aside the Trial Court order and allowed the revision.

What did the court decide?

Impugned order dated 16.01.2023 in Misc.No.36/2018 set aside; revision petition allowed.

Smt.Siddamma.a Vs Sri.Subbappa — Partition | Karnataka HC (2024)

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NC: 2024:KHC:46796 CRP No. 193 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CIVIL REVISION PETITION NO. 193 OF 2023 (IO)

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BETWEEN:

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SMT. SIDDAMMA. A W/O LATE B. SHIVANNA AGED ABOUT 60 YEARS R/O NO.711, AMBEDKAR COLONY 3^RD CROSS, VAJAMANGALA MYSORE MYSORE DISTRICT-570 019.

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SMT. ANKAMMA W/O LATE CHENNAIAH AGED ABOUT 60 YEARS R/O NO.711/2, AMBEDKAR COLONY 3^RD CROSS, MYSORE MYSORE DISTRICT-570 019.

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Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

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SMT. SAKAMMA W/O LATE PURUSAIAH AGED ABOUT 77 YEARS R/O KIRULU VILLAGE AMBEDKAR COLONY VARUNA HOBLI, MYSORE TQ MYSORE DISTRICT-570 019.

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SMT. SIDDAMMA W/O THIMMAIAH AGED ABOUT 75 YEARS R/O NO.116, CAUVERY BADAVANE K SHETTAHALLY, S.R. PATNA TALUK MANDYA DISTRICT-571 422.

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…PETITIONERS

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(BY SRI. S.B. HALLI, ADVOCATE)

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NC: 2024:KHC:46796 CRP No. 193 of 2023

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AND:

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SRI.SUBBAPPA S/O NANJAPPA AGED ABOUT 69 YEARS R/O D.NO.6-7, 5^TH MAIN 7^TH CROSS, CHAMARAJ MOHALLA S.S. PURAM, MYSORE-570 019.

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SRI SHIVANNA S/O LATE SIDDAIAH AGED ABOUT 70 YEARS R/O VAJAMANGALA VARUNA HOBLI AMBEDKAR COLONY 4^TH CROSS, VAJAMANGALA MYSORE TALUK AND DISTRICT-570 019.

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…RESPONDENTS

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(V/O DATED 03.09.2024, NOTICE TO R2 IS DISPENSED WITH; R1 SERVED - UNREPRESENTED)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 16.01.2023 PASSED IN MISC.No.36/2018 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MYSURU, ALLOWING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC.

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THIS PETITION, COMING ON FOR FURTHER DICTATION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR ORAL ORDER

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The petitioner challenges the order passed by the Trial Court, wherein the application filed under Order IX Rule 13 of CPC came to be allowed.

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NC: 2024:KHC:46796 CRP No. 193 of 2023

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The petitioner herein had filed a suit in O.S. No. 1013/2012 seeking partition and possession of their legitimate share in the suit schedule property. Although the defendants entered an appearance, they failed to participate in the trial. Based on the evidence adduced by the plaintiffs, the Trial Court proceeded to allot shares in the suit property as follows: 1/18th share each to plaintiffs Nos. 1, 3, and 4; 1/18th share jointly to plaintiff Nos. 2(a) and 2(b); and 7/18th share collectively to defendant Nos. 1 and 2. The preliminary decree was passed on 25.10.2016.

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Subsequently, defendant No. 3 filed a miscellaneous application under Order IX Rule 13 of the Code of Civil Procedure (CPC) seeking to set aside the preliminary decree and restore the suit. Despite a delay of more than two years and three months in filing the application, the Trial Court, after conducting an inquiry, condoned the delay and allowed the application, restoring the suit to its original file.

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The petitioner’s grievance is that, following the decree passed by the Trial Court, final decree proceedings were initiated in FDP No.11/2017. In terms of the final decree, the suit property was partitioned by metes and bounds, and the plaintiffs were put in possession of their respective shares. The final decree was drawn in the year 2017. Defendant No. 3, despite being aware of the preliminary decree and having

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NC: 2024:KHC:46796 CRP No. 193 of 2023

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participated in the final decree proceedings, suppressed this fact while filing the miscellaneous petition under Order IX Rule 13 of the CPC.

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The respondents, although served with notice of this petition, failed to appear in person or through their counsel and were placed ex parte.

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Defendant No. 3 initially entered an appearance in the original suit but failed to file a written statement within the stipulated time. On 13.01.2013, the Trial Court recorded that defendant No. 3’s written statement would be treated as “nil.”

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Thereafter, the plaintiffs presented their evidence. Defendant No. 3 chose not to cross-examine the plaintiffs or lead any evidence in defense. Based on the evidence on record, the Trial Court decreed the suit on 25.10.2016.

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In the meantime, the plaintiffs initiated final decree proceedings in FDP No. 11/2017. Defendant No. 3 participated in these proceedings and was fully aware of the partition and allocation of shares to the parties. The final decree proceedings were concluded, and the decree was drawn on 30.10.2022, putting the plaintiffs in possession of their respective shares.

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Despite being aware of the preliminary decree and the final decree proceedings, defendant No. 3 filed an

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5 - NC: 2024:KHC:46796 CRP No. 193 of 2023

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application under Order IX Rule 13 of CPC only on 21.07.2018, after an inordinate delay of more than two years and three months.

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No plausible or satisfactory explanation was offered by defendant No. 3 for this delay. The Trial Court, however, allowed the application, observing that defendant No. 3 became aware of the preliminary decree only after participating in the final decree proceedings. This finding by the Trial Court is factually incorrect, as defendant No. 3 actively participated in the final decree proceedings and was fully aware of the decree.

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The final decree proceedings were concluded in 2017, and possession of the respective shares was handed over to the parties. Defendant No. 3’s participation in the final decree proceedings further affirms his awareness of the earlier decree.

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Allowing the miscellaneous application under Order IX Rule 13 of CPC adversely affects the valuable rights accrued to the plaintiffs under the final decree and undermines the sanctity of judicial proceedings.

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The delay of more than two years in filing the miscellaneous petition is unexplained and unjustifiable. The

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NC: 2024:KHC:46796 CRP No. 193 of 2023

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Trial Court erred in condoning such a delay without proper reasoning.

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The Trial Court failed to consider the adverse impact of restoring the suit on the rights of the plaintiffs, who were already put in possession of their respective shares in accordance with the final decree.

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In light of the above, once the final decree has been drawn and possession delivered, the restoration of the suit is neither feasible nor justifiable.

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16. Accordingly, I pass the following:

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ORDER

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i) The revision petition is allowed.

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ii) The impugned order dated 16.1.2023 passed in Misc.No.36/2018 by the learned IV Addl. Senior Civil Judge and JMFC, at Mysuru, is hereby set aside.

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Sd/(HEMANT CHANDANGOUDAR) JUDGE

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BKM

Smt.Siddamma.a v. Sri.Subbappa

Case brief

What is this about?

What did the court decide?

Smt.Siddamma.a v. Sri.Subbappa

Case brief

What is this about?

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