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2019 DIGILAW 1683 (KAR)

Basappa v. Savakka

2019-07-15

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The defendant No.1(C) before the trial Court has filed this regular second appeal feeling aggrieved by the judgment and decree dated 31.07.2014 passed in R.A.No.36/2014 by the Principal District and Sessions Judge, Dharwad which is passed affirming the judgment and decree dated 13.11.2006 passed in O.S.No.215/1998 by the II Additional Civil Judge (Sr. Dn.), Dharwad. 2. There is a delay of 768 days in filing the appeal. Hence, the appellant herein along with the memorandum of appeal has filed an application under Section 5 of the Limitation Act, 1963 seeking condonation of the said delay in filing the appeal. 3. The appellant Basappa has sworn to an affidavit annexed to the application stating that the judgment and decree was passed on 31.07.2014 and he made copy application on 22.11.2016 and the same was obtained on 24.11.2016 and then presented this appeal. 4. He is a poor agriculturist and he had matrimonial problems and therefore he could not approach the trial Court counsel to verify about the status of the case. When he met his counsel in the last week of November 2016, he was informed about the dismissal of the appeal, till then he had no knowledge about the same. 5. The delay is neither intentional nor deliberate but for the bonafide reasons stated above. If delay is not condoned, he will be put to great hardship and irreparable injury. 6. Learned counsel for respondent No.1 has filed statement of objection on the application stating as follows: Respondent No.1 had filed O.S.No.215/1998 before the II Additional Civil Judge (Sr.Dn.), Dharwad for the relief of partition and separate possession of her half share in the suit schedule property. The suit was contested by the appellant and other persons. The suit has been decreed on 13.11.2006 awarding half share to the respondent No.1 in the suit schedule property. Being aggrieved by the said judgment and decree, after lapse of nearly about 7 1/2 years, the appellant and other respondents filed R.A.No.36/2014 before the Principal District and Sessions Judge, Dharwad. After service of notice, respondent No.1 appeared and contested the matter. The said R.A. came to be dismissed on 31.07.2014. After dismissal of the said R.A., the respondents have not filed appeal well within the time. The present appeal is filed nearly after two years. After service of notice, respondent No.1 appeared and contested the matter. The said R.A. came to be dismissed on 31.07.2014. After dismissal of the said R.A., the respondents have not filed appeal well within the time. The present appeal is filed nearly after two years. No reason has been assigned for the condonation of delay and therefore the application is liable to be dismissed. 7. She has further stated that after passing of the preliminary decree by the trial Court, respondent No.1 initiated FDP proceedings before the II Additional Civil Judge (Sr.Dn.), Dharwad in FDP No.15/2007 and the said FDP was closed and final decree was drawn on 14.06.2010. The appellant herein has not filed any appeal against final decree. 8. Thereafter respondent No.1 filed Execution Petition No.114/2010 for taking possession of her share in the suit property as per the final decree. The said execution petition was also closed on 11.02.2016 as fully satisfied. She has produced copy of the order sheet and the report of the bailiff for having taken over the possession of her share in the suit property. 9. Despite giving sufficient opportunity, the learned counsel for the appellant did not submit the arguments on the application. 10. Heard the learned counsel for the respondent No.1. 11. A short question which arise for consideration before this Court on this application is, as to whether the appellant has made out sufficient grounds for condonation of delay of 768 days in filing the appeal. 12. The copies of the order sheet in FDP No.15/2007 and Execution Case No.114/2010 along with reports of the Court officials, goes to show that after passing preliminary decree in O.S.No.215/1998, which was confirmed in R.A.No.36/2014, respondent No.1 decree-holder filed FDP No.15/2007 in which final decree was drawn on 14.06.2010 and thereafter the decree-holder filed execution petition No.114/2010 for taking possession of her share in the suit schedule property and after taking the possession of her share, the said execution petition was closed on 11.02.2016 as fully satisfied. 13. Admittedly the appellant herein has filed the present appeal, challenging the judgment and decree passed in R.A.No.36/2014, in which the preliminary decree passed in O.S.No.215/1998 was challenged. It is not the case of the appellant that he has also filed an appeal challenging the final decree passed in FDP No.15/2007. 13. Admittedly the appellant herein has filed the present appeal, challenging the judgment and decree passed in R.A.No.36/2014, in which the preliminary decree passed in O.S.No.215/1998 was challenged. It is not the case of the appellant that he has also filed an appeal challenging the final decree passed in FDP No.15/2007. It appears that the appellant herein is aware of all these proceedings and therefore he did not come forward to prosecute the present application and the appeal, and he has not at all made out any sufficient cause for condonation of delay of 768 days in filing the present appeal. 14. Therefore the application being devoid of merit is liable to be dismissed. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER I.A.No.1/2017 filed under Section 5 of the Limitation Act, 1963 is hereby dismissed. Consequently, regular second appeal is dismissed.