Second appeal against confirmation of a final decree in a partition suit. The appellant, defendant No.2, had filed no objections to the FDP petition or the Commissioner's report and had not challenged the preliminary decree. Delay condonation application was dismissed and the appeal was consequently dismissed.
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NC: 2024:KHC-D:10006 RSA No. 101540 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF JULY, 2024 BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR SECOND APPEAL NO. 101540 OF 2022 (FDP-)
BETWEEN:
GAYATRI W/O BASAVARAJ DAMBAL AGE: 45 YEARS, OCC: AGRICULTURE, R/O. BANNIKOPPA, TQ. YELBURGA, DIST. KOPPAL, PIN 583231.
…APPELLANT
(BY SRI DINESH M. KULKARNI, ADVOCATE)
AND:
Digitally signed by SAROJA HANGARAKI
Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN RA NO. 143/2022 DATED 30.03.2022 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT KOPPAL IN CONFIRMING THE ORDER PASSED IN F.D.P. NO. 06/2015 DATED 18.03.2020 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, YELBURGA.
NC: 2024:KHC-D:10006 RSA No. 101540 of 2022
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by defendant No.2 challenging the judgment and decree dated 30.03.2022 passed in R.A.No.143/2022 by the Principal Judge, Family Court, Koppal2 and the order dated 18.03.2020 passed in FDP No.6/2015 by the Senior Civil Judge and J.M.F.C., Yelburga,3 whereunder the final decree proceedings filed by the respondent No.1/petitioner has been allowed by the Trial Court and confirmed by the First Appellate Court.
1 Hereinafter referred to as the ‘CPC’
2 Hereinafter referred to as the ‘First Appellate Court’
3 Hereinafter referred to as the ‘Trial Court’
intentional delay in filing the appeal and that the appellant being a village woman and in economically bad condition was unable to file the appeal within time.
NC: 2024:KHC-D:10006 RSA No. 101540 of 2022
passed in O.S.No.48/2013. The appellant was arrayed as respondent No.2 in the final decree proceedings.
“The petition filed by the petitioner U/Order XX Rule 18 of CPC is allowed. The report of the court commissioner i.e., ADLR Yelburga dated 0708-2019 in respect of schedule (a) to (1) properties along with sketches is hereby accepted.
Draw final decree in terms of the report of the court commissioner on requisite non- judicial stamp paper.
The report of the court commissioner, sketch prepared by the surveyor showing the allotment of 5/16th share of the petitioner in respect of (a) to (1) petition schedule properties shall form part of the final decree.
It is hereby ordered that, the petitioner shall be put in possession of her 5/16th share as demarcated in the report of the commissioner from the respondents.
If the respondents refused to deliver possession to the petitioner in respect of her 5/16th share in the (a) to (j) suit schedule properties in terms of the above order, the petitioner is at liberty to get possession of her share in the (a) to (j) schedule properties by filing appropriate execution petition.
Accordingly this petition is allowed.”
appearance before the First Appellate Court and contested
NC: 2024:KHC-D:10006 RSA No. 101540 of 2022
the same. The First Appellate Court framed the following points for consideration:
“1. Whether the appeal preferred challenging the FDP proceedings deserves to be allowed?
2. What order?”
NC: 2024:KHC-D:10006 RSA No. 101540 of 2022
further noticed that the preliminary decree passed in the
suit was also not challenged by the appellant.
not having filed any objections to the final decree proceedings or to the report of the Commissioner, the question of entertaining the present second appeal filed under Section 100 of the CPC by the appellant/defendant No.2 does not arise.
consequently, the above appeal is dismissed.
Sd/JUDGE
SH CT:GSM List No.: 1 Sl No.: 16
2 issues framed by the court
Whether the delay of 21 days in filing the second appeal should be condoned under Section 5 of the Limitation Act.
Whether the second appeal against the final decree order was maintainable when the appellant filed no objections to the FDP petition or Commissioner's report.
3 provisions across 2 enactments
Gayatri W/o Basavaraj Dambal
Paramma W/o Basanagouda Girigoudar @ Girigouda
Andawwa @ Andamma W/o Fakirappa @ Fakeeraddeppa Dambal
Premawwa W/o Sanganna Vaddarkal @Vaddargalli
C.M. Poonacha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
