Appeal against dismissal of a petition under Order IX Rule 13 CPC to set aside a decree passed in 1998 suit. The appellant had knowledge via execution notice served in 2012 yet filed the petition in 2015; medical records did not explain delay. Appeal dismissed.
None; Trial Court's rejection of the Order IX Rule 13 petition upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.2178 OF 2024 (CPC)
BETWEEN:
SMT. INDIRAMMA S/O LATE MANGESH @ MAHESH S AGED ABOUT 52 YEARS, R/AT NO.123, JAKKUR LAYOUT, YELAHANKA HOBLI, BENGALURU NORTH TALUK, NOW YELAHANKA TALUK, BENGALURU URBAN DISTRICT.
…APPELLANT
(BY SRI VISWANATHA SETTY V, ADVOCATE) AND:
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
2ND MAIN, DEEPANJALI NAGAR, VIJAYANAGAR, BENGALURU - 560 040.
…RESPONDENTS
(BY SRI. GURUDATH B S, ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED 22.02.2024 PASSED IN MISC.NO.142/2015 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This miscellaneous first appeal is filed challenging the
order dated 22.02.2024 passed in Misc. No.142/2015 on the file of XIV Additional City Civil and Sessions Judge, Bengaluru.
is that the Trial Court committed an error in dismissing the petition filed under Order IX Rule 13 of CPC and failed to condone the delay. The counsel also submits that though the suit was decreed in the year 2009, immediately, the husband of the appellant met with an accident and died in the year 2010. The counsel also submits that when the execution petition was filed in the year 2010, the appellant was having the knowledge of the said proceeding but the appellant filed miscellaneous petition in the year 2015 but, the delay in filing the miscellaneous petition is for bonafide reason not intentional. In miscellaneous petition, the Trial Court given an opportunity to the appellant to adduce evidence hence, the appellant examined herself as PW1 and got marked the documents at Ex.P1 to P3. The counsel submits that the Trial Court ought to have appreciated the document at Ex.P3 i.e., the medical treatment file of NIMHANS Hospital of the husband of the appellant. The counsel also submits that the appellant is a widow and she could not file the miscellaneous petition
immediately and lenience can be considered and even in any terms, the judgment and decree passed in O.S.No.5996/1998 may be set aside and an opportunity has to be given to the appellant to contest the suit in O.S.No.5996/1998 and hence, prayed this Court to set side the order passed in miscellaneous petition.
material available on record while appreciating both oral and documentary evidence placed on record and rightly comes to the conclusion that the appellant has not made out any sufficient cause to invoke Order IX Rule 13 of CPC.
the respective parties and also on perusal of the material available on record, it discloses that it is not in dispute that the original suit was filed in the year 1998 wherein the husband of the appellant contested the matter by filing written statement and adducing evidence and judgment
and decree was passed in the said suit in the year 2009 itself. The records disclose that husband of the appellant met with an accident in the year 1999 and he died in the year 2010 and Ex.P3 – medical reports produced by the appellant is of the year 1999. Hence, the Trial Court rightly appreciated that these documents will not helpful to the appellant to seek for even lenience. It has to be noted that he died in the year 2010 and even prior to the death of the husband of the appellant, judgment and decree was
passed in the original suit on 29.08.2009 and thereafter also not taken any steps. The appellant even not disputes the fact that in the execution petition also notice was served in the year 2012 on her and miscellaneous petition filed in the year 2015 i.e., on 23.02.2015. Hence, no sufficient cause is shown for approaching the Court invoking Order IX Rule 13 of CPC. The Trial Court while rejecting the petition filed under Order IX Rule 13 of CPC, in paragraph 11 taken note of the fact that the judgment and decree was passed in the year 2009 itself in O.S.No.5996/1998 but miscellaneous petition was filed in
the year 2015 and the appellant was having the knowledge about the judgment and decree in the year 2012 itself when the notice was served in the execution petition but not taken any steps. Under these circumstances, I do not find any grounds to set aside the order of the Trial Court passed in the miscellaneous petition when the Trial Court has given reason for rejection of the said petition and detailed order has been passed by the Trial Court. The appellant relied upon the document at
Ex.P3 – medical records of the year 1999 but Ex.P3 also not comes to the aid of the appellant. When such being the case, this Court is of the opinion that the Trial Court has rightly passed the reasoned order appreciating both oral and documentary evidence placed on record and the appellant has not made out any grounds to set aside the said order.
the following:
ORDER
The Miscellaneous First Appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/(H.P.SANDESH) JUDGE
SN
1 issue framed by the court
Whether sufficient cause existed to invoke Order IX Rule 13 CPC to set aside the ex parte decree in O.S.No.5996/1998, given notice served in the execution petition in 2012 and the petition filed only
2 provisions across 1 enactments
Smt. Indiramma
Smt. Bhagya @ Bhagyamma
Smt. B Tulasamma
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
