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2013 DIGILAW 1266 (KAR)

Hanamant v. Master Anil

2013-11-05

B.SREENIVAS GOWDA

body2013
JUDGMENT : B. Sreenivas Gowda, J. 1. This second appeal is filed by the respondents in F.D.P. No. 2/2008 along with an application under Section 5 of the Limitation Act seeking to condone the delay of 191 days in preferring the appeal. I have heard the learned counsel appearing for the appellants and perused the judgments and decrees of the Courts below. The respondents were serviced and remained unrepresented. 2. The lower appellate Court by its judgment and decree dated 30.10.2010 dismissed the regular appeal filed by the appellants, challenging the order passed in F.D.P. No. 2/2008 for drawing up of final decree. The appellants have applied for the certified copy of the said judgment and decree of the lower appellate Court on 26.11.2010 and secured the copies on 11.01.2011 and have presented this appeal on 22.09.2011 and there has been delay of 191 days in preferring this second appeal. 3. The appellant No. 1 in para-4 of his affidavit filed in support of I.A. No. 1/2011 has stated that the judgment in R.A. No. 1018/2009 was pronounced on 30.10.2010 and the decree was drawn on 15.11.2010. The application for certified copy of the order was applied on 26.11.2010. The certified copy was ready on 11.01.2011 and the same was received by their counsel before the lower Court at Belgaum on the same day and the very same day he has intimated to them through post card. But the said post card has not been served to them, may be it was lost in the post office or served to any wrong person. 4. It is not the case of the appellants that, in their village, there is one more person by name similar to that of appellant No. 1, to accept their case that the post card addressed by their counsel must have been served on the wrong person. The allegation that their advocate has written a post card intimating them the receipt of the certified copy of the judgment and decree passed in the regular appeal by lower appellate Court and it was not served on him is not supported by filing the affidavit of their advocate. There is absolutely no reason, much less the valid reason to condone the delay of 191 days in filing the appeal. Therefore, the appeal is liable to be dismissed on the ground of delay itself. 5. There is absolutely no reason, much less the valid reason to condone the delay of 191 days in filing the appeal. Therefore, the appeal is liable to be dismissed on the ground of delay itself. 5. Even on merits, the suit filed by the respondents in O.S. No. 106/2002 for partition and separate possession of their 4/10th share in the suit schedule properties was decreed by the trial Court and thereafter the respondents filed a petition in F.D.P. No. 2/2008 before the trial Court for drawing up of final decree. The trial Court by its order dated 19.06.2009 allowed the petition filed by the respondents and it has ordered that a final decree be drawn as per the order passed in the preliminary decree and in accordance with the report and sketch filed by the Tashildar, Raibag on 12.03.2009. The sketch filed by the Tashildar is ordered to be treated as part and parcel of the final decree and it has directed the office to draw final decree after collecting the requisite stamp-duty. 6. The said order, dated 19.06.2009 passed by the trial Court in F.D.P. No. 2/2008 was challenged by the appellants by preferring a regular appeal in R.A. No. 1018/2009 before the lower appellate Court along with an application under Section 5 of the Limitation Act seeking to condone the delay in preferring the regular appeal. 7. The reasons stated in the affidavit filed by the second appellant in R.A. No. 1018/2009 for condoning the delay in preferring the regular appeal is that his wife has obtained an order from JMFC for payment of maintenance. Because of inability to pay the arrears of maintenance, he was sent to jail. His father was suffering from cardiac disease. Therefore, there is delay in filing the appeal. 8. The lower appellate Court has dismissed the delay application on the ground that the cause for the delay is not satisfactorily explained. Because of inability to pay the arrears of maintenance, he was sent to jail. His father was suffering from cardiac disease. Therefore, there is delay in filing the appeal. 8. The lower appellate Court has dismissed the delay application on the ground that the cause for the delay is not satisfactorily explained. On merits, it has rightly held that the declaration of shares of the respondents cannot be questioned by way of appeal against the order passed in F.D.P. proceedings and it has held that if the appellants were aggrieved by the judgment and decree passed in the original suit declaring that the plaintiffs-respondents have 4/10th share in the suit schedule properties, they should have challenged the said judgment and decree of the trial Court by preferring a regular appeal before the lower appellate Court. The lower appellate Court considering the order passed in F.D.P. No. 2/2008, ordered that a final decree be drawn as per the order passed in the preliminary decree and in accordance with the report and sketch filed by the Tashildar and dismissed the regular appeal on both the grounds of delay as well as on merits. Therefore, the contention of the appellants before this Court that the lower appellate Court has dismissed their appeal solely on the ground of delay has no merit. On the other hand, it has dismissed the appeal both on the ground of delay as well as on the merits of case. 9. I have carefully gone through order passed in F.D.P. No. 2/2008 and the judgment and decree passed in regular appeal and I do not find any illegality or infirmity warranting my interference, moreover there is no substantial questions of law, which arises for my consideration in this second appeal. Accordingly, the appeal as well as I.A. No. 1/2011 filed for condonation of delay of 191 days in filing the appeal are dismissed as devoid of merits.