Sri Lakshmamma Since Dead by Lrs Jayamma Vs Lakshmi

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.08.2024 PASSED IN R.A.NO.102/2024 (OLD R.A.NO.105/2023) ON THE FILE OF I ADDITIONAL PRL. JUDGE, FAMILY COURT, TUMAKURU, DISMISSING THE IA NO.1 FILED UNDER SECTION 5 OF THE LIMITATION ACT, AND FILED AGAINST THE ORDER DATED 22.03.2021 PASSED IN FDP NO.15/2015 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT TUMAKURU, ALLOWING THE FINAL DECREE PROCEEDINGS FILED UNDER SECTION 54 R/W ORDER 20 RULE 18 OF CPC.

¶56

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶57

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

¶58

ORAL JUDGMENT

¶59

This matter is listed for admission. Heard the learned

¶60

counsel for the appellants and the learned counsel for the caveator/respondent No.1.

¶61

The respondent No.1 had initiated the final decree proceedings in FDP No.15/2015 before the Trial Court, since there was a preliminary decree in O.S.No.160/1998 and notice was also issued and heard the respective parties. The Commissioner was also appointed in the final decree proceedings and the Commissioner’s report was taken note of

¶62

6 - NC: 2025:KHC:27492 RSA No. 1305 of 2024

¶63

HC-KAR

¶64

in paragraph No.12 that this Court Commissioner has also got issued notice to both the parties, he has conducted panchanama, recorded the statement of the parties and he has also prepared the sketch. The FDP Court also taken note that in the petition schedule Item No.2 property also the plaintiff has been allotted her half share as per the preliminary decree in O.S.No.160/1998. In the house property, the petitioner/plaintiff is allotted property measuring 8’6 x 48’ feet and the said share of the plaintiff also separately shown in the Commissioner’s report. On perusal of the records of the learned Taluka Surveyor and Executive Engineer PWD, Tumkur, the Court comes to the conclusion that the Court Commissioners have carried out the commission work correctly and have effected partition as per the preliminary decree in O.S.No.160/1988. Having considered the Commissioner’s report, comes to the conclusion that notice was issued to both the parties and spot inspection was also conducted and that the Commissioner’s report deserves to be accepted and accepted the same and the said order was passed on 22.03.2021.

¶65

7 - NC: 2025:KHC:27492 RSA No. 1305 of 2024

¶66

HC-KAR

¶67

Being aggrieved by the said order, an appeal was filed in 2024 with the delay of 2 years 3 months in preferring the regular appeal. In the appeal, an application was filed under Section 5 of the Limitation Act to condone the delay. In support of the application, an affidavit was filed, wherein it was contended that her mother and respondents Nos.20 to 24 had preferred Regular Second Appeal before the Hon'ble High Court of Karnataka in R.S.A.No.499/2020. However, the Trial Court has drawn the final decree based on the Commissioner’s report. When she recently received delivery warrant from the Court, she came to know the knowledge of sketch demarcating the properties. It is also contended that as per the sketch, she has been allotted with southern portion and the Commissioner has not provided any road to her portion and hence filed the present appeal and hence there was a delay in approaching the Court.

¶68

The said application was resisted by filing the statement of objections that the application is not maintainable and also not shown any sufficient cause. At every stage, the appellant has obstructed for further proceedings in FDP petition. The appellant has succeeded to get the stay order in the preliminary decree passed in

¶69

8 - NC: 2025:KHC:27492 RSA No. 1305 of 2024

¶70

HC-KAR

¶71

R.A.No.107/2013 and in R.S.A.No.2075/2019, before the Hon'ble High Court of Karnataka and after dismissal of the said R.S.A., respondent No.1 has proceeded further in the matter and the FDP proceedings was initiated and the appellant was also very much aware of the proceedings initiated by the Trial Court. The delay has not been properly explained.

¶72

The Appellate Court, having considered the grounds, which have been urged as well as the objections, formulated the point whether the appellants satisfy that they had sufficient cause for not preferring the appeal within the period of limitation? The Appellate Court taken note of the judgment relied upon by the learned counsel for the appellants in the case of K. PRAVEEN v. B.S. NAGARAJ reported in 2018 (4) KCCR 3038 and in the case of STATE OF MYSORE v. LAXMAN SHARANAPPA reported in AIR 1965 Mysore 31 relied upon by respondent No.1. The Appellate Court taken note of the evidence of P.W.1, who has been examined before the Trial Court on I.A.No.1 and made an observation that no documents are marked on their behalf. On the other hand, respondent No.1 has been examined as

¶73

9 - NC: 2025:KHC:27492 RSA No. 1305 of 2024

¶74

HC-KAR

¶75

R.W.1 and got marked 33 documents at Exs.R1 to 33. Having considered the material on record, an observation is made with regard to the Covid is concerned and the order of the Apex Court dated 10.01.2022 was also taken note of. Considering the order, an observation is made that the appellant has to explain the delay from 01.06.2022 till 02.08.2023 and also taken note of that in fact, when affidavit averments are carefully gone through, there is no reason explaining the delay except saying that she received delivery warrant from the Senior Civil Judge, Tumakuru.

¶76

The Appellate Court also observed that on going through the records, Ex.R.1 which is the order sheet in FDP No.15/2015 shows that mother of the applicants had made her appearance in the proceedings of FDP No.15/2015 by engaging the advocate. Ex.R.1 further discloses that the said petition was allowed on 22.03.2021. Ex.R.3 which is the order sheet in Execution No.194/2022, shows that the decree holder had filed Execution petition on 09.12.2022. Further, the above order sheet in the said case discloses that the present appellants were JDR Nos.1 and 2 in the said case and they had appeared through advocate in the said execution

¶77

10 - NC: 2025:KHC:27492 RSA No. 1305 of 2024

¶78

HC-KAR

¶79

proceedings on 31.01.2023. Further, very same order sheet discloses that on 19.04.2023, delivery warrant was issued and the order sheet dated 30.06.2023 shows that delivery warrant with respect to item No.1 of property was executed and also in respect of item No.2 delivery warrant was also executed with the help of the police. Having taken note of the said material on record, the Appellate Court comes to the conclusion that at each and every stage, the appellants were having the knowledge about the same and also participated in proceedings, even in the FDP proceedings and also execution proceedings and delivery warrant in respect of item Nos.1 and 2 was executed and possession is delivered and hence dismissed the I.A. that no ground is made out to condone the delay.

¶80

Now the learned counsel for the appellants would

¶81

contend that even if the delivery warrant was executed, if the appellants succeed in the matter, the same cannot be a ground to dismiss this RSA.

¶82

Per contra, the learned counsel for respondent

¶83

No.1 would contend that when the delivery warrant was issued and possession was taken and when the appellants

¶84

11 -

¶85

NC: 2025:KHC:27492 RSA No. 1305 of 2024

¶86

HC-KAR

¶87

also participated in the FDP proceedings and also in the execution proceedings, the question of considering this RSA does not arise. The delay application was dismissed on the ground that the appellants were having the knowledge about the proceedings and possession was taken and the appellants cannot continue this proceedings.

¶88

Having heard the learned counsel for the

¶89

appellants and the learned counsel for respondent No.1 and also on perusal of the material available on record, it is the contention of the learned counsel for the appellants that if the appellants succeeds in this appeal, the order passed in FDP as well as execution proceedings will not come in the way of the appellants. But the fact is that when the preliminary decree was passed, the same was challenged and they were unsuccessful in the Appellate Court. When the FDP proceedings was initiated long back in 2015, the order was passed in 2021 after six years, wherein also the appellants have participated in the FDP proceedings and also even subsequent to the passing of FDP proceedings, execution petition was filed, wherein also they have been served and they have also participated in the execution proceedings.

¶90

12 - NC: 2025:KHC:27492 RSA No. 1305 of 2024

¶91

HC-KAR

¶92

When such being the case, filing of RA belatedly in 2024 as against the order passed in 2021 and hence the Appellate Court also rightly taken note of the fact that having knowledge about the FDP proceedings and execution proceedings, the filing of RA with the delay is only an afterthought. When such being the case, I do not find any ground to admit the appeal and frame any substantial question of law. The appellants were having the knowledge about all these proceedings and participated by engaging the advocate and the same is also observed by the Appellate Court while dismissing the application for condonation of delay. Hence, I do not find any ground to admit and frame any substantive question of law.

¶93