Beereswaraswamy Trust vs Sri C R Kasargod on 4 October, 2023

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Karnataka High Court

Beereswaraswamy Trust vs Sri C R Kasargod on 4 October, 2023

Bench: Pradeep Singh Yerur

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                                                        NC: 2023:KHC:35767
                                                      RSA No. 1395 of 2012




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 4TH DAY OF OCTOBER, 2023

                                          BEFORE
                      THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                     REGULAR SECOND APPEAL NO. 1395 OF 2012 (INJ)

                   BETWEEN:

                   BEERESWARASWAMY TRUST,
                   REPRESENTED BY ITS PRESIDENT,
                   SRI C. JAVARAPPA,
                   NO.85, 6TH CROSS,
                   THONACHI KOPPAL,
                   MYSORE - 570 001.
                                                                ...APPELLANT
                   (BY SMT. G. JAYASHREE, ADVOCATE (ABSENT))

                   AND:

                   SRI. C.R. KASARGOD,
                   S/O. SRI RAGHAVENDRA RAO KASARGOD,
                   AGED ABOUT 51 YEARS,
                   PRESENTLY R/AT NO.12,
                   SUDEEP APARTMENT,
Digitally signed   SURDHARA CIRCLE, THALTEJ,
by CHAITHRA P
                   AHAMEDABAD, GUJARATH.
Location: High
Court of
Karnataka          REPRESENTED BY HIS WIFE
                   GENERAL POWER OF ATTORNEY HOLDER,
                   SMT. JAYANTHI CHAKRAPANI KASARGOD,
                   W/O. SRI C.R. KASARGOD,
                   AGED ABOUT 46 YEARS,
                   R/AT NO.7, BLOCK NO.11-E,
                   B.E.M.L. LAYOUT,
                   SREERAMPURA II STAGE,
                   MYSORE - 570 005.
                                                               ...RESPONDENT
                   (BY SRI. SAYYED AKBAR, ADVOCATE FOR
                       SRI. MAHANTESH S. HOSMATH, ADVOCATE)
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                                                NC: 2023:KHC:35767
                                          RSA No. 1395 of 2012




     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CIVIL PROCEDURE CODE PRAYING TO SET
ASIDE THE JUDGEMENT AND DECREE DATED:12.4.2011
PASSED BY THE III ADDITIONAL I CIVIL JUDGE & JMFC,
MYSORE IN O.S.NO.79/2008 AND THE JUDGMENT AND DECREE
DATED:3.4.2012 PASSED BY THE LEARNED PRESIDING
OFFICER, FTC-IV, MYSORE IN R.A.NO.400/2011 AND ETC.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

There is no representation on behalf of appellant.

2. Sri Sayyed Akbar, learned counsel appearing on behalf of Sri Mahantesh S.Hosmath for respondent is present.

3. Learned counsel for respondent has filed a memo, which reads as under:-

"That the parties in the above case here amicable settle the dispute out of the Court and the same is reported before the Execution Court. Hence, the execution proceeding are dropped, hence in view of the same the above appeal does not survive for consideration hence, please to drop the appeal proceedings in the interest of justice."

4. Along with the said memo, copies of the order sheet of the executing Court and the compromise petition executed between the parties in Ex.No.292/2013 are placed on record. -3-

NC: 2023:KHC:35767 RSA No. 1395 of 2012 The executing Court, vide order dated 30.11.2021, recording the compromise between the parties and accepting the execution of the same, disposed of the petition in terms of the compromise petition filed under Order XXIII Rule 3 of CPC.

5. This appeal is preferred by the defendant, being aggrieved by the judgment and decree passed in O.S.No.79/2008 which came to be decreed in favour of the plaintiff. The first Appellate Court did not interfere with the judgment of the trial Court and dismissed the regular appeal confirming the judgment and decree passed by the trial Court. When the plaintiff had put the judgment and decree for execution in Ex.No.292/2013, it appears that the parties have executed the compromise petition between themselves by accepting some amount, which is reflected at para-1 in the compromise petition. Since the appellant has not been appearing before this Court continuously for a longer time, it can be assumed by this Court that as the appellant has already entered into the compromise petition, the respondent is not bothering to come before this Court to make submission and the matter is not admitted yet.

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NC: 2023:KHC:35767 RSA No. 1395 of 2012

6. In view of the memo filed along with the compromise petition in Ex.No.292/2013, nothing further would survive for consideration in the second appeal. Accordingly, the appeal is disposed of.

7. In view of the fact that the appellant is not present before this Court and if the appellant appears and contends otherwise and if the submission made in the memo filed by the respondent is otherwise, it is open for the appellant to seek necessary orders.

In view of disposal of this appeal, pending I.A. would not survive for consideration and the same pales into insignificance.

Sd/-

JUDGE CPN

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