Mallappa vs Somappa & Ors on 13 September, 2017

[Cites 5, Cited by 1]

Karnataka High Court

Mallappa vs Somappa & Ors on 13 September, 2017

Bench: S.Sujatha

                                1




             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

       DATED THIS THE 13TH DAY OF SEPTEMBER 2017

                            BEFORE

           THE HON'BLE MRS. JUSTICE S.SUJATHA

         WRIT PETITION NO.207077/2017 (GM-CPC)

Between:

Mallappa S/o Siddappa Dhanagond
Age: 71 years, Occ: Agriculture
R/o Honawad, Tq & Dist: Vijayapura
                                              ... Petitioner

(By Sri Ameet Kumar Deshpande, Advocate)

And:

1.     Somappa S/o Siddappa Dhanagond
       Age: 84 years, Occ: Agriculture
       R/o Honawad, Tq. & Dist: Vijayapura

2.     Sidaraya S/o Somanna Dhanagond
       Age: 53 years, Occ: Agriculture
       R/o Honawad, Tq. & Dist: Vijayapura

3.     Shantabai W/o Mallappa Dhanagond
       Age: 58 years, Occ: House hold work
       R/o Honawad, Tq. & Dist: Vijayapura

4.     Bhimanna S/o Somanna Dhanagond
       Age: 51 years, Occ: Agriculture
       R/o Honawad, Tq. & Dist: Vijayapura

5.     Basappa
       S/o Somanna Dhanagond
                                   2




      Age: 48 years, Occ: Agriculture
      R/o Honawad, Tq. & Dist: Vijayapura
                                                       ... Respondents

     This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to allow the writ petition and issue a
writ more so in the mature of certiorari and quash the order
impugned passed on I.A.No.I dated 02.08.2017 in R.A.No.67/2014
passed by the 1st Additional Senior Civil Judge at Vijayapura, the
certified copy of which is at Annexure 'M', till the final disposal of
this writ petition.

      This petition coming on for preliminary hearing this day, the
Court made the following:-

                              ORDER

The petitioner has assailed the order passed on I.A. No.1 in R.A. No.67/2014 on the file of the I Addl. Senior Civil Judge, Vijayapura.

2. The petitioner has filed a suit in O.S. No.233/2011 against the defendants/respondents herein for the relief of decree for partition and separate possession for his half share in the suit property. The suit filed by the petitioner is decreed. The respondent Nos.1 and 2 herein have preferred R.A. No.67/2014 challenging the legality and correctness of the preliminary decree passed in O.S. 3 No.233/2011, with the delay of 383 days, I.A. No.1 was filed by the respondent Nos.1 and 2. The lower appellate Court on appreciation of evidence, allowed the application I.A.No.1 filed under Section 5 of the Limitation Act, condoning the delay of 383 days in filing the appeal. Aggrieved by the said order, the petitioner is before this Court.

3. Heard the learned counsel appearing for the petitioner and perused the material on record.

4. The petitioner herein had filed objections to the I.A.No.1 and evidence was also let in by the parties. On appreciation of material evidence, the Lower Appellate Court allowed the I.A.No.1. It is observed that the Court below after being satisfied that the PW.1/Respondent No.1 has shown sufficient cause for condoning the delay in filing the appeal, condoned the delay. It is apparent that the Lower Appellate Court has exercised the discretionary power in allowing the application with judicious mind. The application cannot be 4 rejected on hyper technicalities. No ground made out by the petitioner to interfere with the well reasoned order.

Accordingly, writ petition stands dismissed.

Sd/-

JUDGE LG/RR

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