Hon'ble SINHA, J.— Leave granted.

2. This appeal is directed against the orders dated 24.10.2005 and dated 1.12.2005 passed by the High Court of Kanataka at Bangalore whereby and whereunder delay of 2487 days in filing the appeal has been condoned and the said appeal has been allowed.

3. The basic fact of the matter is not in dispute. The brother of Madwaramanachar, father of the appellant, was admitted to S.D.S. TB Hospital at Bangalore. All the articles from the body of his brother were removed by the father of the appellant. After his death, the father of the appellant requested the hospital authorities to hand over the obsquecies seized wherefor a written request was made on 9.6.1981. The Superintendent of the said hospital passed an order that the articles kept by the father of the appellants must be delivered back to the hospital authorities for being kept in a safe custody so as to enable them to deliver the same to the persons entitled therefor. Delivery of the articles was insisted before handing over the dead body. The said articles were handed over to the hospital authorities wherefor an acknowledgment was issued.

4. An application for grant of succession certificate was filed by the father of the appellants on 24.8.1981. In the said proceedings, one Gowramma, wife of the deceased, was impleaded as a party. She expired during the pendency of the said proceedings. She, allegedly left behind one S. Basavarajappa, who is said to be her adopted son. By an order dated 5.7.1991, succession certificate was granted in favour of the appellant in respect of the following :

1. Amount in vijay Bank Togarsi S.B. Account No.309 with interest Rs.5-00

2. Amount in Syndicate Bank, Shimoga S.B. Account No.27717 Ledger Folio No.30 with interest Rs.318-65

3. Amount in syndicate Bank, Shimoga Koppa, S.B. Account No.7/89 folio 4289/17 with interest Rs.19379-59

Gold Articles belonging to deceased in deposit in the Hospital at Bangalore.

Gram Mgs

One Sudarshan ring \00511 - 700

One Ring with red Stones \005 5 - 300

One Finb sing shigd stones \005 6 - 600

One Bar \00546 - 800

\00539 - 450

Cash \005160 - 00

5. Despite production of the said succession certificate, the hospital authorities did not return the said articles and documents to the appellant’s father, whereupon a suit in the court of Additional City Civil Judge, Bangalore seeking a direction to the hospital authorities-defendants to hand over the articles to the appellants or in alternative pay the value thereof which was assessed at Rs.45,000/- was filed

6. No notice under Section 80 of the Code of Civil Procedure, however, was served upon the State. An application under sub-section (2) of Section 80 of the Code was filed which is said to have been allowed. Before the learned Trial Judge, no written statement was filed by the State. It was decreed ex parte on decree was passed on 31.10.1997.

7. An execution case was filed in the year 2003 for execution of the said decree. Upon receipt of the summons from the executing court, a first appeal was preferred by the State of Karnataka. As indicated hereinbefore, the same was barred by 2487 days.

An application for condonation of delay was filed in the said appeal being IA No.1 of 2005 which, by reason of a judgment dated 24.10.2005 was allowed. The High Court by reason of its judgment dated 1.12.2005 pointed out various deficiencies in the said decree and opined that the judgment and decree passed by the learned Trial Judge was not sustainable in law, stating :

(i) No urgency was shown for filing the suit in terms of sub-section (2) of Section 80 of the Code of Civil Procedure;

(ii) Smt. Gowramma was a necessary party in the suit; and

(iii) The value of the articles was not mentioned in the succession certificate. There was nothing to show that the plaintiff was the only heir of the deceased.

It was directed :

"The appeal is allowed an the impugned judgment and decree dated 31.10.1997 made in O.S. No.3830/1994 on the file of II Additional City Civil Jud

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