Dismissed

Sri. Munishammappa v. Krishnappa

Karnataka HC12 Nov 2024WP/43640/2018

Case brief

AI extract

What is this about?

Challenge to an order directing parties whose Misc. petition under Order IX Rule 9 CPC to recall an appeal dismissed as abated was held non-maintainable, to pursue setting aside abatement and condonation of delay in the regular appeal. The High Court found no error and dismissed the writ petition.

What the court decided

AI extract

Sri. Munishammappa Vs Krishnappa — Civil Procedure and Limitation | Karnataka HC (2024)

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1 - NC: 2024:KHC:46019 WP No. 43640 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 43640 OF 2018 (GM-CPC)

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BETWEEN:

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SRI. MUNISHAMMAPPA SINCE DEAD BY HIS LRS.,

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(a) BACHAMMA, W/O. LATE MUNISHAMMAPPA, AGED ABOUT 66 YEARS,

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(b) JAYAMMA

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D/O. LATE MUNISHAMMAPPA, AGED ABOUT 40 YEARS, KADAGATUUR VILLAGE, VEMGAL, KOLAR-563 101.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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(d) KANTHAMMA D/O. MUNISHAMMAPPA, AGED ABOUT 36 YEARS,

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(e) SUBRAMANI S/O. MUNISHAMMAPPA, AGED ABOUT 32 YEARS,

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PETITIONER NO.a, c, d, e ALL ARE R/AT JANNAGATTA VILLAGE, SUGATUR HOBLI, KOLAR TALUK, KOLAR-563 101.

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…PETITIONERS

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(BY SMT. ARATHI B., ADVOCATE FOR SRI. KARTHIK P.M., ADVOCATE)

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2 - NC: 2024:KHC:46019 WP No. 43640 of 2018

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AND:

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KRISHNAPPA S/O. CHIKKA MUNIYAPPA, SINCE DEAD BY ITS LRS.,

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a) LAKSHMAMMA W/O. LATE KRISHNAPPA, AGED ABOUT 51 YEARS,

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b) SHIVA KUMAR S/O. LATE KRISHNAPPA, AGED ABOUT 29 YEARS,

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c) MUNEGOWDA S/O. LATE KRISHNAPPA, AGED ABOUT 27 YEARS,

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d) SUJATHA D/O. LATE KRISHNAPPA, AGED ABOUT 26 YEARS,

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MUNIVENKATE GOWDA S/O. LATE RAMAIAH, AGED ABOUT 76 YEARS,

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SINCE DEAD DELETED

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AMENDMENT CARRIED OUT AS PER ORDER DATED 31.10.2022

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RESPONDENT NO.1(a) to (d) AND RESPONDENT NO.2 ARE R/AT BESTHENAHALLI VILLAGE, HOLUR HOBLI, KOLAR TALUK-563 126.

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SRI. GOPASANDRA VENKATESHAPPA SINCE DEAD BY LRS.,

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a) NASAMMA, W/O. LATE MUNISWAMAPPA, AGED ABOUT 76 YEARS,

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b) B.M. VENKATASWAMY W/O. LATE MUNISWAMAPPA,

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3 - NC: 2024:KHC:46019 WP No. 43640 of 2018

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AGED ABOUT 51 YEARS,

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BOTH ARE RESIDENTS OF BESTHENAHALLI VILLAGE, HOLUR HOBLI, KOLAR TALUK-563 126.

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…RESPONDENTS

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(BY SRI. SANTHOSH, ADVOCATE FOR SRI. M.S.VARADARAJAN, ADVOCATE FOR RESPONDENT NO.3(a) AND 3(b);

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NOTICE SERVED ON RESPONDENT NOS.1(a), 1(b) AND 1(c); VIDE ORDER DATED 31.10.2022 RESPONDENT NO.2 IS DELETED; VIDE ORDER DATED 24.01.2023 NOTICE TO RESPONDENT NO.1(d) IS HELD SUFFICIENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE PRL. DISTRICT JUDGE AT KOLAR IN U.M.A.NO.05/2010 DTD 13.07.2018 VIDE ANNEXURE-F.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioners herein have challenged the correctness of an order dated 07.09.2016 passed by the II Additional District and Sessions Judge, Kolar (henceforth referred to as 'Appellate Court') in Misc.Appeal No.20/2013 by which, though it dismissed the appeal but directed the consideration of the applications (I.A.Nos.2 to 5) on merit in R.A.No.116/1999.

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NC: 2024:KHC:46019 WP No. 43640 of 2018

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A suit was filed by the predecessor of the petitioners herein in O.S.No.348/1995, which was decreed on 26.03.1999. The defendant No.2 in the suit filed R.A.No.116/1999. However, the defendant No.2 in R.A.No.116/1999 died and no steps were taken to bring the legal representatives on record. The appeal therefore, stood dismissed as abated on 22.07.2004. Thereafter, the legal representatives of the defendant No.2 filed Misc.No.26/2007 under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC') to set aside the order dated 22.07.2004 passed in R.A.No.116/1999 dismissing the appeal. The said Misc.No.26/2007 was dismissed in terms of the order dated 02.11.2009. Following this, an appeal was filed by the legal representatives of the defendant No.2 in Misc.Appeal No.20/2013 before the Appellate Court. The Appellate Court after noticing that R.A.No.116/1999 was not dismissed for default but was dismissed as abated, dismissed Misc.Appeal No.20/2013 as it was not maintainable under Order IX Rule 9 of CPC. Nonetheless, it directed that the applications (I.A.Nos.2 to 5) filed in Misc.Appeal No.20/2013 be treated on merits in R.A.No.116/1999.

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NC: 2024:KHC:46019 WP No. 43640 of 2018

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Being aggrieved by the said order, the petitioners

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are before this Court in this writ petition.

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The learned counsel for the petitioners contended that the legal representatives of the defendant No.2/respondent Nos.3(a) and 3(b) herein knew that R.A.No.116/1999 was dismissed as abated and therefore, they must have taken steps for restoration of the appeal in R.A.No.116/1999 and not by filing a Misc.No.26/2007 under Order IX Rule 9 of CPC. She also contended that the appeal was filed by the general power of attorney holder of the defendant No.2 and that he was aware of the death of defendant No.2 but yet did not take any steps to bring the legal representatives.

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The learned counsel for the respondent Nos.3(a) and 3(b) however, contends that under a mistaken advise Misc.No.26/2007 was filed to recall the order dated 22.07.2004 dismissing the R.A.No.116/1999 as abated. He contends that the proper course was to file appropriate applications in R.A.No.116/1999 for setting aside the abatement, for condonation of delay in filing the application to come on record and to pursue the appeal. He submits that the Appellate Court

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NC: 2024:KHC:46019 WP No. 43640 of 2018

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in Misc.Appeal No.20/2013 has therefore, rightly directed that the applications be treated on merits in R.A.No.116/1999.

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I have considered the submissions of the learned counsel for the petitioners as well as the learned counsel for the respondent Nos.3(a) and 3(b).

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This is an unfortunate case where an appeal dismissed as abated is treated as an appeal that was dismissed for default and Misc.No.26/2007 under Order IX Rule 9 read with Section 151 of CPC was filed to recall the order dismissing the appeal as abated. The Trial Court therefore, rightly held that a petition under order XLI Rule 9 of CPC was not maintainable as the proper course was to file applications in R.A.No.116/1999 for restoration of appeal by setting aside the abatement etc., The Appellate Court while sitting in an appeal against the order passed in Misc.No.26/2007 has rightly held that such a petition was not maintainable under Order IX Rule 9 of CPC and therefore, relegated the parties to R.A.No.116/1999. There is no error committed by the Appellate Court in directing the parties to work out remedy in R.A.No.116/1999. The Appellate Court truly and rightly

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NC: 2024:KHC:46019 WP No. 43640 of 2018

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exercised power under Section 151 of CPC in undoing a palpable wrong understanding of law.

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In that view of the matter, this writ petition is dismissed . However, it is open for the legal representatives of the defendant No.2 to explain the reasons for condonation of delay and also for setting aside the abatement of R.A. No.116/1999.

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Sd/(R. NATARAJ) JUDGE

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PMR

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List No.: 1 Sl No.: 53

Sri. Munishammappa v. Krishnappa

Case brief

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Sri. Munishammappa v. Krishnappa

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