Third-party applicants in an execution petition appealed against dismissal of their condonation-of-delay application by the first appellate Court. The High Court found their rights had already been determined in an earlier second appeal and the litigation was an abuse of process; it held no substantial question of law arose and dismissed the appeal.
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 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1497 OF 2017
BETWEEN:
Digitally signed by ANUSHA V Location: High Court Of Karnataka
…APPELLANTS
[BY SRI. SHANKARANARAYANA BHAT N ., ADVOCATE (PH)]
AND:
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R/A D.NO.1650, 2ND CROSS, VIDYANAGARA, MANDYA CITY 571 401.
…RESPONDENTS
[BY SRI N.B. NIJALINGAPPA, ADVOCATE FOR R1 (PH); R2 - SERVED]
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.02.2017 PASSED IN RA NO.03/2015 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM MANDYA, DISMISSING THE APPEAL AND FILED AGAINST THE ORDER DATED 07.11.2014 PASSED IN EX.NO.39/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AT MANDYA REJECTING THE IA FILED UNDER ORDER XXI RULE 97-99, 100 OF CPC.
THIS APPEAL IS COMING ON FOR ADMISSION , THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 28.02.2017 passed by I Additional Senior Civil Judge and CJM, Mandya, in R.A.no.03/2015, and order dated 07.11.2024 passed by Principal Civil Judge (Jr.Dn.), Mandya, in Ex.P.no.39/2011, this appeal is filed.
Old Mangalore tiled house situated in Mandya Christian Colony bearing house no.D3/281/1697 bounded on East by house of Chintamani; West by site of Sathyanathappa; North by R.P. Road and South by site of Gurushanthappa within this house measuring 20 ft. X 25 ft.
Property bearing Municipal Khata no.D3/281/1697 consisting of Mangalore tiled house and vacant site surrounding said house, totally measuring East-West 40 ft. and North-South 120 ft. and bounded on East by remaining house and site belonging to JDr and other members of her family; West by property of Sathyanathappa; North by R.P. Road and South by property of Gurushanthappa .
schedule to decree was different from schedule in execution
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petition, without noticing same decree was sought to be executed against different property. Therefore, appellantsapplicants herein filed I.A.no.4/2012 in Ex.P.no.39/2011 under Order XXI Rules 97, 98, 99, 101 read with Section 151 of CPC.
after hearing parties only on application for condonation of delay, first appellate Court answered point no.1 in negative and point no.2 by dismissing appeal, by making observations on merits also.
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would arise for consideration and prayed for allowing appeal by
answering them in favour of appellant:
1. Whether order dismissing appeal by first appellate Court was in accordance with law?
2. When only point for consideration before first appellate Court was about delay, whether it was justified in dismissing appeal by considering it on merits, without hearing appellants on merits?
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there was no joint possession or title and that it belonged exclusively to Manuelappa. It had further held that Manuelappa had bequeathed it to his wife and from whom plaintiff (DHr) had purchased suit property under registered sale deed dated 18.07.1995. In view of said finding, and fact that third party applicants herein were none other than brothers of defendant – Vanajakshi, there was absolutely no bonafide or merit in their application before Executing Court. It was submitted, while rejecting application for condonation of delay, first appellate Court had taken note of same. Since, claim of defendant and her brothers stood concluded earlier in RSA no.705/2005, no substantial question of law would arise for consideration and sought dismissal of appeal.
judgment and decree and record.
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settled. Hon’ble Supreme Court, in Collector (LA) v. Katiji, reported in (1987) 2 SCC 107 has held:
3. The legislature has conferred the power to condone delay by enacting Section 5 [Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on ” merits ”. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice — that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
“ 1 . Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2 . Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3 . “Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4 . When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side
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cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5 . There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6 . It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the “State” which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the “State” is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause”. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to
the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.
(emphasis supplied)
14. Its recent reiteration in Mool Chandra v. Union of
India reported in 2024 SCC OnLine SC 1878 , is:
“… It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been propounded will have to be examined. If the cause for delay would fall within the four corners of “sufficient cause”, irrespective of the length of delay same deserves to be condoned. However, if the cause shown is insufficient, irrespective of the period of delay, same would not be condoned.”
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cause to condone delay, first appellate Court observed as follows:
“During the cross-examination PW.1 has admitted that other appellants are all retired, but are suffering from ill-health. There are no documents in order to show appellants were suffering from ill-health. It is also clear that it was this witness who had attended the office of the counsel and had placed instructions . …. …. During the course of its finding the learned Executing Court had found that the attempt of the appellants were nothing but abuse of law. PW.1 also admits that the first respondent is his sister and her case was taken up to the Hon’ble Supreme Court and the order was passed in favour of the respondents no.1. Under such circumstances the entire evidence of PW.1 would clearly reveal that the appellants are in the habit of litigating without any cause. The appellants being aware of the decision that had attained finality are in the habit of litigating on the same cause. The appellants have not only filed the appeal within the prescribed period but prima facie make this court believe that even with all the orders against them they are in the habit of beginning of fresh litigation on the same cause which clearly is an abuse of process of court. Hence they are saddled with costs of Rs.500-00 as well. Accordingly there appears no grounds let alone sufficient cause. Hence, I have answered the point in the negative.”
17. Question posed in this appeal is, whether first
appellate Court has examined explanation offered and recorded finding about it qualifying as sufficient cause or otherwise. It is seen, there is observation that applicants assertions are not
substantiated. However, there is also observation about filing of appeal being an abuse of process of law.
appears substantive, a brief reference to history of litigation as painstakingly examined by this Court in RSA no.705/2005, appears imperative, in facts and circumstances of this case.
Later, while shifting his residence to Tumkur, he permitted her to reside in said house as tenant. But, when he later asked her to vacate, she refused, giving rise to cause of action for filing suit. Further, Manuelappa had executed Will on 23.10.1993 bequeathing ‘suit property’ measuring 40 ft. X 117½ ft. (40 X 120) with house measuring 20 ft. X 25 ft, to his wife – A Sampatkumari.
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different schedule of suit property in Execution Petition than in plaint and decree, same requires to be rejected outright on ground that same was not urged before Executing Court.
not those already determined while passing decree under
Execution. HSC in Rahul S Shah v. Jinendra Kumar Gandhi reported in (2021) 6 SCC 418 has placed Executing Courts under obligation to expedite execution. In light of above, observation of first appellate Court would not warrant interference. For aforesaid reasons, neither of substantial
questions of law would arise for consideration.
Consequently, appeal is dismissed .
Sd/(RAVI V HOSMANI) JUDGE
psg*
List No.: 1 Sl No.: 45
3 issues framed by the court
Whether the delay in filing the appeal against the Executing Court's rejection of the third-party application was supported by sufficient cause.
Whether the first appellate Court was justified in dismissing the appeal on merits without hearing the appellants on merits.
Whether substantial questions of law arose regarding execution of a decree against property differently scheduled.
Colour shows how this judgement treated each authority
Collector (LA) v. KatijiRelied on¶13
(1987) 2 SCC 107 · Who else cites this
Mool Chandra v. Union of IndiaRelied on¶14
2024 SCC OnLine SC 1878 · Who else cites this
Rahul S Shah v. Jinendra Kumar GandhiRelied on¶24
(2021) 6 SCC 418 · Who else cites this
RSA no.705/2005Relied on¶20
3 provisions across 2 enactments
Sri M. David
Smt. Pushpa Rathna
Sri Adarsh Immanuel
Sri M. Ravikantha
Smt B.S. Rathan
Smt. M. Vanajakshmi
Ravi V Hosmani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
