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2023 DIGILAW 223 (KAR)

Siddamma v. Basavaraj

2023-02-06

C.M.POONACHA

body2023
JUDGMENT 1. The above revision petition is filed under Sec. 115 of Code of Civil Procedure (hereinafter referred to as "the CPC"), challenging the order dtd. 5/12/2017 passed in R.A.No.101/2016 by the Senior Civil Judge Deodurga (hereinafter referred to as "First Appellate Court"). 2. Vide order dtd. 5/12/2017 passed in R.A.No.101/2016, the First Appellate Court has allowed the application filed by respondent No.1 who was the appellant in R.A.No.101/2016 filed under Sec. 5 of the Limitation Act condoning the delay of 888 days in preferring the appeal in R.A.No.101/2016. 3. It is forthcoming that the Petitioner had filed a suit for partition in O.S.No.86/2012 in the Court of the Civil Judge and JMFC, Deodurga. The said suit was decreed vide judgment and decree dtd. 2/12/2013. Being aggrieved by the same, the respondent No.1 who was arrayed as defendant No.1 in the suit, filed an appeal in R.A.No.101/2016. 4. It is contended by the Petitioner that, the First Appellate Court, having regard to the fact that the decree passed in O.S.No.86/2012 has already merged with the final decree drawn in FDP No.5/2014 and the said final decree has attained finality by dismissal of W.P.No.202388/2016, ought to have noticed that the appeal before the First Appellate Court itself was not maintainable and hence no order could have been passed condoning the delay. He further submits that the order dtd. 5/12/2017 passed by the First Appellate Court which is impugned in the present revision petition has not considered the objections of the Petitioner and no reason has been given by the respondent No.1 to condone the unreasonable and enormous delay. Hence, he seeks for allowing of the present revision petition. 5. Per contra, learned AGA appearing for respondents justifies the order passed by the First Appellate Court. 6. I have considered the submissions made by both the parties and perused the material available on record. The question that arises for consideration is; "Whether the order dtd. 5/12/2017 passed in R.A.No.101/2016 is liable to interfered with? 7. Admittedly, the Petitioner is the plaintiff in O.S.No.86/2012. The said suit has been decreed vide judgment and decree dtd. 2/12/2013. It is alleged by the respondent No.1 who is the appellant in R.A.No.101/2016 that the said decree passed in the suit is an ex-parte one. 5/12/2017 passed in R.A.No.101/2016 is liable to interfered with? 7. Admittedly, the Petitioner is the plaintiff in O.S.No.86/2012. The said suit has been decreed vide judgment and decree dtd. 2/12/2013. It is alleged by the respondent No.1 who is the appellant in R.A.No.101/2016 that the said decree passed in the suit is an ex-parte one. Further, the Trial Court has noticed that the Respondent No.1 who is appellant in R.A.No.101/2016 who examined himself as PW.1 has placed on record that he was suffering from chicken gunya and hence he could not contact his advocate and he was not aware of the disposal of the suit. The suit filed by the Petitioner is one for partition claiming 1/3rd share in the suit schedule property. The said suit is decreed. It is the contention of respondent No.1 in R.A.No.101/2016 that since the Petitioner had assured that the suit would be withdrawn, the same was not contested. Subsequently, it came to the knowledge of Respondent No.1 that instead of withdrawing the suit, the plaintiff has pursued the same resulting in the judgment and decree dtd. 2/12/2013. Hence, R.A.No.101/2016 has been filed. 8. The Trial Court noticing the cause shown and after recording a finding that the cause shown is a bonafide one, has condoned the delay and allowed the application under Sec. 5 of the Limitation Act on payment of cost of Rs.1, 000.00. 9. It is clear from the above that the decree dtd. 2/12/2013 which is sought to be challenged in R.A.No.101/2016 is a decree for partition where the valuable rights in the immovable property have sought to be dealt with. The right of first appeal contained under Sec. 96 of CPC Order 41 Rule 1 of CPC is a valuable right which a party ordinarily ought not be denied. 10. The contention of the Petitioner that the decree in O.S.No.86/2012 has attained finality in FDP No.5/2014 which has also been confirmed by this Court in W.P.No.202388/2016, is a matter to be considered when the appeal in R.A.No.101/2016 is adjudicated on its merits. The Petitioner initiating Final Decree Proceedings is not a ground to deny the right of first appeal. 11. The Petitioner has not made out any ground to demonstrate the First Appellate Court has erroneously exercised its jurisdiction or has exercised jurisdiction not vested in it to warrant interference by this Court under Sec. 115 of CPC. The Petitioner initiating Final Decree Proceedings is not a ground to deny the right of first appeal. 11. The Petitioner has not made out any ground to demonstrate the First Appellate Court has erroneously exercised its jurisdiction or has exercised jurisdiction not vested in it to warrant interference by this Court under Sec. 115 of CPC. Hence, the above revision petition fails and is accordingly rejected. No costs.