Dismissed¶48

Shri. Ulavappa S/O. Gurupadappa Kamadolli, v. Shri Basavanneppa S/O. Gurupadappa Kamadolli

Karnataka HC27 Jan 2025RFA/100077/2017

Case brief

AI extract

What is this about?

Abatement of appeal; death of respondent during appeal; failure to substitute legal representatives; Order XXII CPC; partition and separate possession; common interest; entire appeal abates; Hemareddi v. Ramachandra Yallappa Hosamani (2019) 6 SCC 756; RFA dismissed as abated; Senior Civil Judge and JMFC Hangal; O.S.No.8/2008; Karnataka High Court Dharwad Bench; NC: 2025:KHC-D:1589-DB.

What did the court decide?

The appeal stood abated against respondent No.1, who died on 07.08.2024, as the appellants failed to bring his legal representatives on record despite sufficient opportunities. ¶43

Shri. Ulavappa S/O. Gurupadappa Kamadolli, Vs Shri Basavanneppa S/O. Gurupadappa Kamadolli — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶48

Issue for consideration

Whether, in a regular first appeal against a decree in a suit for partition and separate possession, abatement qua respondent No.1 (whose legal representatives were not brought on record) results in abatement of the entire appeal, common interest being involved.

¶43

Court's answer

The appeal stood abated against respondent No.1, who died on 07.08.2024, as the appellants failed to bring his legal representatives on record despite sufficient opportunities.

¶43

Ratio / Principle

Since the suit was one for partition and separate possession and common interest is involved in the appeal, the consequence of abatement qua a party is not limited to the deceased party alone but affects all the other parties and the litigation itself; hence the entire appeal abates, following the law laid down by the Hon'ble Apex Court in Hemareddi (dead) through LRs v. Ramachandra Yallappa Hosamani, (2019) 6 SCC 756.

¶43

Key takeaways

Accordingly, the appeal is dismissed as abated.ratio¶48

Detailed headnote1 paragraphs

High Court of Karnataka, Dharwad Bench — RFA No. 100077 of 2017 (PAR/POS), decided 27.01.2025 (Justice Ashok S. Kinagi, author; Justice Umesh M Adiga, member). Appeal under Sec. 96 r/w Order XLI Rule 1 CPC 1908 against the judgment and decree dated 09.01.2017 of the Senior Civil Judge and JMFC, Hangal in O.S.No.8/2008, which had dismissed a suit for partition and separate possession. Respondent No.1 died on 07.08.2024 and, despite sufficient opportunities, the appellants did not bring his legal representatives on record, so the appeal abated qua respondent No.1. Relying on Hemareddi (dead) through legal representatives v. Ramachandra Yallappa Hosamani and others, (2019) 6 Supreme Court Cases 756 — wherein it is held that in certain kinds of litigation the consequences of abatement qua a party are not limited to the deceased party but affect all other parties and the litigation itself — and noting that the suit for partition involved common interest, the court held that the entire appeal abated and dismissed it as abated. (The appeal against respondent No.8 had earlier abated vide order dated 18/08/2023.)

¶1

¶2

NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF JANUARY 2025

¶5

PRESENT

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND

¶7

THE HON'BLE MR. JUSTICE UMESH M ADIGA

¶8

REGULAR FIRST APPEAL NO. 100077 OF 2017 (PAR/POS)

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BETWEEN:

¶10

SHRI. ULAVAPPA, S/O. GURUPADAPPA KAMADOLLI, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUK: HANGAL, DIST: HAVERI.

¶11

1A. SMT. SHIVAGANGAVVA, W/O. ULAVAPPA KAMADOLLI, AGE: 50 YEARS, OCC: HOUSEHOLD, R/O: BELGALPET 581 104. TALUK: HANGAL. DIST: HAVERI.

¶12

Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench

¶13

1B. SMT. NIRMALA W/O. UMESH HIRETANAD AGE: 27 YEARS, OCC: HOUSEHOLD, R/O: KUNIMELLIHALLI 581 202, TALUK: SAVANUR, DIST: HAVERI.

¶14

1C. SHRI. SOMASHARAN, S/O. ULAVAPPA KAMADOLLI, AGE: 23 YEARS, OCC: AGRICULTURE, R/O: BELGALPET 581 104 TALUKA: HANGAL, DIST: HAVERI.

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…APPELLANTS

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(BY SRI. ABHISHEK C. PATIL, ADVOCATE)

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2 - NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017

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AND:

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SHRI. BASAVANNEPPA, S/O. GURUPADAPPA KAMADOLLI, AGE: 79 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI.

¶20

SHRI. DODDAPPA, S/O. GURUPADAPPA KAMADOLLI, AGE: 76 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI.

¶21

SHRI. RUDRAPPA, S/O. GURUPADAPPA KAMADOLLI, AGE: 69 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI.

¶22

SHRI. KOTRAPPA, S/O. DODDAPPA KAMADOLLI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: MUNDAGOD-581 349, DIST: KARWAR.

¶23

SHRI. GADIGEPPA, S/O. SHIVARAYAPPA KAMADOLLI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI.

¶24

SHRI. SIDDAPPA, S/O. SHIVARAYPPA KAMADOLLI, AGE: 34 YEARS, OCC: KEB CONTRACTOR, R/O: MUNDAGOD-581 349, DIST: DHARWAD.

¶25

SHRI. SHAMBULINGAPPA, S/O. SHIVARAYAPPA KAMADOLLI, AGE: 31 YEARS, OCC: AGRICULTURE AND BUSINESS,

¶26

¶27

NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017

¶28

R/O: GOKUL GARDENS,

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NEAR NEW BUS STAND, HUBBALLI-580 020, DIST: DHARWAD.

¶30

SHRI. MAHABALESHWAR, S/O. SATAPPA KHODANPUR, AGE: 79 YEARS, OCC: BUSINESS, R/O: ULLAGADDI ONI, HUBBALLI-580 020, DIST: DHARWAD.

¶31

SMT. CHANGALAVVA, W/O. CHANNABASAPPA MALEPPANAVAR, AGE: 74 YEARS, OCC: HOUSEHOLD, R/O: HARAVI-581 148, TALUKA: HANGAL, DIST: HAVERI.

¶32

SHRI. SHIVARAYAPPA S/O. GURUPADAPPA KAMADOLLI, AGE: 77 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI.

¶33

…RESPONDENTS

¶34

(BY SRI. S.R. HEGDE, ADVOCATE FOR R1; NOTICE TO R2 AND R4 SERVED; SRI. UMESH C. AINAPUR, ADVOCATE FOR C/R5 TO R7, R10, R3 AND R9; APPEAL AGAINST R8-ABATED V/O. DATED 18/08/2023)

¶35

THIS RFA IS FILED UNDER SEC. 96 R/W ORDER XLI RULE 1 OF CPC., 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED:09.01.2017 PASSED IN O.S.NO.8/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HANGAL, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

¶36

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI CORAM: AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

¶38

¶39

NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017

¶40

ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

¶42

Though, it was reported that respondent No.1 died on 07.08.2024, despite, granting sufficient opportunities, the appellants did not file necessary application to bring the legal representatives of deceased respondent No.1 on record.

¶43

The appeal is abated against respondent No.1. As the suit is one for partition and separate possession and common interest is involved in this appeal, the consequence of abatement qua a party not limited to the deceased party alone, but it effects all the other parties and the litigation itself, the entire appeal abates. The said view is supported by the judgment of The Hon'ble Apex Court in the case of Hemareddi (dead) through legal representatives v. Ramachandra Yallappa Hosamani

¶44

and others reported in (2019) 6 Supreme Court Cases 756 has held as under:

¶45

5 - NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017

¶46

"14. Admittedly, steps were not taken for substitution in regard to the second appellant. The appeal, therefore, abated qua him as is declared by Order XXII Rule 3(2). Though this is all that the Order XXII Rule 2 declares, the principle has evolved that in certain kinds of litigation, the consequences of abatement qua a party are not limited to the deceased party alone but it affects all the other parties and the litigation itself. In other words, a suit or an appeal as the case may be, would suffer an untimely demise by the proceeding abating as a whole."

¶47

Since, the appeal is filed challenging the decree for partition and separate possession, and the appeal abates against some of the parties and as common interest is involved, considering the law laid down by the Hon'ble Apex Court in Hemareddi 's case (supra), the entire appeal abates.

¶48

Accordingly, the appeal is dismissed as abated.

¶49

Sd/(ASHOK S. KINAGI) JUDGE

¶50

Sd/(UMESH M ADIGA) JUDGE

¶51

kmv

¶52

CT-CMU

Shri. Ulavappa S/O. Gurupadappa Kamadolli, v. Shri Basavanneppa S/O. Gurupadappa Kamadolli

Case brief

What is this about?

What did the court decide?

Shri. Ulavappa S/O. Gurupadappa Kamadolli, v. Shri Basavanneppa S/O. Gurupadappa Kamadolli

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

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