Dismissed

Byrappa v. Avalappa

Karnataka HC5 Dec 2024RSA/992/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a Regular Second Appeal by rejecting the accompanying application for condonation of delay of 802 days. The Court held that the appellants failed to demonstrate sufficient cause, noting that the delay was unnecessary given their participation in execution proceedings.

What did the court decide?

The application for condonation of delay and the Regular Second Appeal were both rejected.

Byrappa Vs Avalappa — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:50271 RSA No. 992 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF DECEMBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 992 OF 2014 (DEC/INJ)

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BETWEEN:

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BYRAPPA

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S/O VENKATARAYAPPA, AGED 50 YEARS

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NARAYANAPPA

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S/O VENKATARAYAPPA, AGED 47 YEARS

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LAKSHMI NARAYANA S/O VENKATARAYAPPA, AGED 43 YEARS

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CHINNAPPAIAH S/O VENKATARAYAPPA, AGED 38 YEARS

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH

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Location: HIGH COURT OF KARNATAKA

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ALL ARE R/AT SHETTIVARAHALLI VILLAGE MANDIKAL HOBLI, CHICKBALLAPUR TALUK, CHICKBALLAPUR DISTRICT - 562 101

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…APPELLANTS

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(BY SMT.SOWKHYA PATIL., ADVOCATE FOR SRI. G BALAKRISHNA SHASTRY.,ADVOCATE)

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AND:

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AVALAPPA

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S/O NARAYANAPPA, MAJOR, R/A SHETTIVARAHALLI VILLAGE,

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NC: 2024:KHC:50271 RSA No. 992 of 2014

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MANDIKAL HOBLI, CHICKBALLAPURA - 562 101

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…RESPONDENT

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(BY SRI.RAJESWARA P N.,ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.02.2012 PASSED IN R.A.NO.18/2005 ON THE FILE OF SENIOR CIVIL JUDGE AND CJM, CHICKBALLAPUR, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 16.12.2004 PASSED IN O.S.NO.67/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC, GUDIBANDA.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Learned counsel for appellants submits that he is unable

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to contact appellants since 25.10.2021 to file better affidavit and seeks for consideration of delay application and a prayer as it is.

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Heard learned counsel for appellants.

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Challenging judgment & decree dated 10^th February

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2012 passed in R.A. no.18/2005 by Senior Civil Judge & CJM, Chickballapur ("first appellate Court" for short) and judgment & decree dated 16^th December 2004 in O.S. no.67/2001 passed

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NC: 2024:KHC:50271 RSA No. 992 of 2014

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by Civil Judge (Jr.Dn.) & JMFC, Gudibanda ("trial Court" for short), this appeal is filed.

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It was submitted that though appellants/defendants contested, trial court decreed suit on erroneous grounds on 16.12.2004. Aggrieved, defendants preferred appeal in R.A. no.18/2005 before first appellate Court. Though various substantial contentions were urged, first appellate Court dismissed appeal on 10.12.2012, without proper consideration.

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As there was delay in filing appeal, I.A. no.1/2014 was filed for condonation of delay of 802 days in filing appeal. In affidavit filed in support of application, it is stated that though appellants were aware of impugned judgment and decree, there were settlement talks between parties. Several elderly people of village including one Keshava Reddy, MLA of Chickballapur and other panchas made efforts to settle dispute and they had advised appellants not to precipitate matter by filing appeal. However, respondent filed Execution Case No.421/2012 before Civil Judge & JMFC, Gudibanda. In execution case, appellants had entered appearance by engaging counsel. However since counsel had assured them

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4 - NC: 2024:KHC:50271 RSA No. 992 of 2014

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that he would protect their interest in execution petition, they remained aloof until 17.6.2014 when Court Amin appeared alongwith Police and took them to Court. As per order passed in execution case, they were subjected to civil imprisonment for a period of seven days. Subsequently, they obtained certified copy of proceedings and contacted counsel at Bengaluru. On his advice, they came to know that challenging order/proceedings passed in execution case would be futile without filing Appeal against decree. Thereafter, this appeal was filed. Hence, delay has accrued.

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6. To supplement assertions, appellant had filed affidavits of Keshava Reddy s/o Chikkanarayana Reddy; S.P. Srinivasa s/o Peddanna; Chennakrishna Reddy s/o Chikkanarayana Reddy; and Krishnegouda S/o Bichanna, residents of Chikkaballapur taluk, wherein they had stated that dispute between parties was resolved by them by deciding to divide suit property such that plaintiff would take ½ share of suit property and defendants would take remaining ½ share, but terms of compromise were not formulated into a Deed and it was evident that parties had not acted as per compromise. It was submitted that said supplementary affidavits would

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NC: 2024:KHC:50271 RSA No. 992 of 2014

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reinforce appellants' assertions about efforts for settlement. Hence delay was for reasons beyond control of appellants and same may be condoned.

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Heard learned counsel for appellants and perused delay application and affidavits.

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Though notice was issued, no objections are filed to application. However, order sheet dated 25.10.2021 would indicate that counsel for appellants sought time to file better affidavit. Today, learned counsel has stated that same cannot be complied due to lack of contact with party.

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From above, it is seen appeal is belated by 802 days. It is not in dispute that appellants were aware of judgment and decree passed by first appellate Court. Though they sought to explain that delay was caused due to settlement talks and compromise having been brought about between parties by village elders, it is seen that respondent had filed execution petition for enforcement of decree and appellants had entered appearance in same. It is also seen that in affidavit filed in support of I.A. no.1/2014, appellants have disclosed name of only Keshava Reddy as pancha while supplementary affidavits add particulars of other panchayathdars . In any case, neither

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6 - NC: 2024:KHC:50271 RSA No. 992 of 2014

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affidavit of appellants nor affidavits of said panchas disclose date on which sittings were held, place where sittings were held and date on which compromise or settlement was arrived at.

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Unless it is demonstrated that same was after passing of judgment & decree by first appellate Court and prior to filing of this appeal, they would not be relevant for explaining delay. Despite opportunity for filing better affidavit, appellants have shied away from same. Fact that Execution Petition was filed by respondent and appellants had appeared in execution petition would greatly dilute explanation offered supra . Explanation appears to be offered as formality than carrying any substance. Hence, as appellants have failed to show sufficient cause and as there appears to be negligence or failure to take steps for mitigation, I do not find any justification to condone same.

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In view of above, I.A.no.1/2024 is rejected. Consequently, appeal as well as other pending application/s stand rejected .

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SD/- (RAVI V HOSMANI) JUDGE

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GSS List No.: 1 Sl No.: 10

Byrappa v. Avalappa

Case brief

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What did the court decide?

Byrappa v. Avalappa

Case brief

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