Dismissed

Sri B N Changalarayareddy v. Smt Lingamma

Karnataka HC18 Mar 2024MFA/699/2015

Case brief

AI extract

What is this about?

High Court KHC dismissed an application for condonation of delay in a Miscellaneous First Appeal. The Court held that the appellants failed to show sufficient cause for the 328-day delay, citing a contradictory ground used in an earlier petition. Consequently, the appeal was dismissed, but the appellants were left open to participate in final decree proceedings to include other partitionable prope

What did the court decide?

The application for condonation of delay (I.A.2/2015) and the Miscellaneous First Appeal were dismissed. The appellants were informed they could participate in Final Decree Proceedings to include othe

Sri B N Changalarayareddy Vs Smt Lingamma — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:10997 MFA No. 699 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 699 OF 2015 (CPC)

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BETWEEN:

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SRI. B.N. CHANGALARAYAREDDY, S/O NANJUNDAREDDY, AGED ABOUT 62 YEARS, R/AT HAGADURU VILLAGE, ANJANADALLI HOBLI, WHITEFIELD, HOSAKOTE TALUK - 560 066.

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SRI. SADASHIVA REDDY, S/O NANJUNDAREDDY, AGED ABOUT 70 YEARS, SINCE DEAD BY HIS LRS.

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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2(A). SMT. MURTHAMMA, W/O SADASHIVA REDDY, AGED ABOUT 70 YEARS,

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2(B). SMT. SHASHIKALA, D/O LATE SADASHIVA REDDY, AGED ABOUT 52 YEARS,

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2(C). SRI. VASANTHA D/O LATE SADASHIVA REDDY, AGED ABOUT 50 YEARS,

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2(D). SRI. RAJ KUMAR, D/O LATE SADASHIVA REDDY,

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2 - NC: 2024:KHC:10997 MFA No. 699 of 2015

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AGED ABOUT 44 YEARS,

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2(E). SMT. MANJULA, D/O LATE SADASHIVA REDDY, AGED ABOUT 44 YEARS,

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ALL ARE R/AT BANTAHALLI VILLAGE, D.N DODDI POST, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 139.

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SRI. VENUGOPAL REDDY, S/O NANJUNDAREDDY, AGED ABOUT 68 YEARS,

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SRI. VENKATA REDDY, S/O NANJUNDAREDDY, AGED ABOUT 62 YEARS,

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SRI. CHANDRA REDDY, S/O JAYARAMA REDDY, AGED ABOUT 42 YEARS,

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SRI. KRISHNAMURTHY REDDY, S/O NANJUNDA REDDY, AGED ABOUT 37 YEARS,

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NO.2 TO 6 ARE R/AT BANTAHALLI VILLAGE, D.N. DODDI POST, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 139. …APPELLANTS

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(BY SRI. V. VIJAYASHEKARA GOWDA, ADVOCATE)

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AND:

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SMT. LINGAMMA, W/O APPAIAH REDDY,

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3 - NC: 2024:KHC:10997 MFA No. 699 of 2015

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AGED ABOUT 52 YEARS,

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SMT. JAYALAKSHMAMMA, W/O GURUMURTHY REDDY, AGED ABOUT 50 YEARS,

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SRI. ANJANA REDDY, S/O NANJUNDA REDDY, AGED ABOUT 48 YEARS,

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SRI. KONDAREDDY, S/O NARAYANAREDDY, AGED ABOUT 45 YEARS, SINCE DEAD BY HIS LRS.

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4(A). SMT. LAKSHMAMMA, W/O LATE KONDA REDDY, AGED ABOUT 48 YEARS,

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4(B). SRI. SHIVA KUMAR, W/O LATE KONDA REDDY, AGED ABOUT 30 YEARS,

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4(C). SRI. SRINIVAS, W/O LATE KONDA REDDY, AGED ABOUT 28 YEARS,

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RESPONDENTS NO.4(A) TO 4(C) ARE R/AT BANTAHALLI VILLAGE, D.N. DODDI POST, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 139.

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SMT. RAMAKKA, W/O NARAYANAREDDY, AGED ABOUT 64 YEARS,

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4 - NC: 2024:KHC:10997 MFA No. 699 of 2015

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SMT. BHAGYAMMA, D/O NARAYANAREDDY, AGED ABOUT 35 YEARS,

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SMT. SUMITHRA, D/O JAYARAMAREDDY, AGED ABOUT 34 YEARS,

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SMT. SAKAMMA, W/O JAYARAMAREDDY, AGED ABOUT 53 YEARS,

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RESPONDENT NO. 1 TO 3 AND 5 TO 8 ARE R/AT BANTAHALLI VILLAGE, D.N. DODDI POST, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT.

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…RESPONDENTS

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(BY SRI. SOURABH R, ADVOCATE FOR R1; SRI. E. VENKATARAMI REDDY, ADVOCATE FOR R3, R4(A-C), R7 AND R8; R2, R5 AND R6 ARE SERVED)

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THIS MFA IS FILED U/O 43 RULE 1(d), R/W ORDER 41, RULE 1 OF CPC, AGAINST THE ORDER DATED 28.11.2013 PASSED IN MISC NO.21/2013 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, KOLAR, DISMISSING THE PETITION FILED U/O 9 RULE 13 OF CPC.

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THIS APPEAL COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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5 - NC: 2024:KHC:10997 MFA No. 699 of 2015

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ORDER

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I.A.1/2015 is filed by the appellants for condonation of delay of 328 days in filing belated appeal challenging the order dated 28.11.2013 in Misc. No.21/2013 passed by the Principal District Judge, Kolar.

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It is stated in the affidavit accompanying the application for condonation of delay that the appellants being illiterate and agriculturists were unaware of the requirement in law to file the appeal in time. They further claim that the respondents had assured that they would not pursue the suit in O.S.No.30/2005 and the appeal and therefore, they did not file the appeal. They contend that after receiving the notice in the Final Decree Proceedings before the Court of Kolar, they were shocked to know that the respondents did not stick to their promise. Thereafter, the appellants contacted their advocate and filed the present appeal. They contended that the reason for not filing the appeal in time was beyond their control and neither deliberate nor intentional.

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The application for condonation of delay is opposed by the respondents, who have stated that the reason assigned by

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6 - NC: 2024:KHC:10997 MFA No. 699 of 2015

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the appellants for condonation of delay is neither true nor genuine, but is invented for the purpose of getting the delay condoned. They contend though the appellants knew the judgment and decree passed in O.S.No.30/2005 and R.A.No.6/2007, they filed Misc. No.21/2013 under Order IX Rule 13 of the Code of Civil Procedure where they claimed that they came to know of the judgment and decree passed in O.S.No.30/2005 only after receipt of notice in the Final Decree Proceedings. The respondents contend in the present application for condonation of delay, they have cited the same reason that they cited in Misc. No.21/2013. Therefore, they contended that there is no justification to condone the delay and the reason mentioned in the affidavit is probably false.

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I have considered the submissions made by the learned Counsel for the appellants and the learned Counsel for the respondents.

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Respondent No.1 filed O.S.No.30/2005 for partition

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and separate possession of her share in the suit schedule property which was decreed in-part on 21.07.2006. Later

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7 - NC: 2024:KHC:10997 MFA No. 699 of 2015

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R.A.No.6/2007 was filed by respondent No.1 which was allowed and the suit was decreed in its entirety. Thereafter, respondent No.1 filed Final Decree Proceedings i.e., FDP No.10/2008 and notice of the Final Decree Proceedings was issued. The appellants herein filed a miscellaneous petition in Misc.No.21/2013 wherein they claimed that they came to know of the exparte judgment and decree in O.S.No.30/2005 only after receiving notice in the Final Decree Proceedings. The miscellaneous petition was dismissed on 28.11.2013, against which, the present belated appeal is filed.

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A perusal of the affidavit shows that the appellants claim that respondent No.1 had assured that she would not pursue the suit in O.S.No.30/2005 and R.A.No.6/2007. They also contend that they came to know of the judgment and decree only after receipt of notice in the Final Decree Proceedings. The cause shown for the delay is apparently wrong. The appellants were bound to satisfy this Court that they were prevented by sufficient cause in filing the present appeal. They certainly could not back upon the reason mentioned in Misc.No.21/2013 for not filing the present appeal in time.

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8 - NC: 2024:KHC:10997 MFA No. 699 of 2015

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Be that as it may, since the appellants have not stated their defence, but merely denied the claim of respondent No.1 and since the proceedings in the Final Decree have reached the stage of acceptance of the Commissioner's report, no indulgence can be shown to the appellants by condoning the delay of 328 days in filing the appeal.

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In that view of the matter, the application -

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I.A.2/2015 lacks merits and the same is dismissed and consequently, the Miscellaneous First Appeal filed by the appellants is also dismissed.

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However, it is always open for the appellants to participate in the Final Decree Proceedings and include all the properties of the family which are partable and not shown in the schedule to the decree in O.S.No.30/2005.

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Sd/JUDGE

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NSU List No.: 1 Sl No.: 15 CT: BHK

Sri B N Changalarayareddy v. Smt Lingamma

Case brief

What is this about?

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Sri B N Changalarayareddy v. Smt Lingamma

Case brief

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