IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 28^TH DAY OF JANUARY 2022

BEFORE

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

M.S.A.NO.100023/2019

BETWEEN

VEERUPAKSHAYYA

S/O IRAYYA GANACHARI,

AGE: 73 YEARS,

OCC: AGRICULTURE AND CONTRACTOR

R/O MUDAGAL,

TQ: LINGASUR,

NOW RESIDING AT HALADUR VILLAGE,

TQ: BADAMI,

DIST: BAGALKOT.

… APPELLANT

(BY SRI K L PATIL & S A SONDUR, ADVOCATES.)

AND

GIDIGAYYA

S/O IRAYYA @ VEERAYYA GANACHARI

SINCE DECEASED BY HIS LRS.

1.

VEERASANGAYYA

S/O GIDIGAYYA GANACHARI @ MULIMATH

AGE: 39 YEARS,

OCC: AGRICULTURE.

2.

JADISWAMY

GIDIGAYYA GANACHAR @ MULIMATH

AGE 36 YEARS,

OCC: AGRICULTURE.

BOTH ARE R/O BEGUMPURPET,

MUDAGAL, TQ: LINGASUR, DIST: RAICHUR.

3.

HAMPAMMA

BASAYYA CHOWDIMATH

2

AGE: 26 YEARS,

OCC: HOUSEHOLD,

R/O HOOLAGERI,

TQ: KUSHTAGI,

DIST: HAVERI.

4.

GANGAVVA

W/O GIDIGAYYA GANACHAR,

AGE: ABOUT 58 YEARS,

OCC: HOUSEHOLD WORK.

5.

GURUSHANTAYYA

S/O GIDIGAYYA GANACHARI @ MULIMATH

AGE: ABOUT 50 YEARS,

OCC: AGRICULTURE.

BOTH APPELALNT NOS.4 & 5 ARE

R/O BENGUMPURPETH, MUDAGAL,

TQ: LINGASUR, DIST: RAICHUR.

6.

SHANTAPPA

S/O TAVARAPPA GANTIHAL,

AGE: MAJOR (NOT KNOWN),

OCC: AGRICULTURE,

R/O BEGAMPURPETH,

TQ: LINGASUR,

DIST: RAICHUR.

… RESPONDENTS

(BY SRI P.G.MOGALI, ADV. FOR R.1 TO R5.)

(NOTICE TO RESPONDENT NO.6 : SERVED)

THIS APPEAL IS FILED UNDER ORDER LXIII (U) OF THE

CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO

SET ASIDE THE JUDGMENT AND DECREE DATED 20.12.2018

PASSED IN R.A.NO.142/2011 BY THE PRINCIPAL DISTRICT AND

SESSIONS JUDGE, BAGALKOT CONFIRMING THE JUDGMENT

AND DECREE DATED 15.09.2003 PASSED IN O.S.NO.60/2001

BY I ADDITIONAL SENIOR CIVIL JUDGE, BAGALKOT.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

3

: JUDGMENT :

The appellant/plaintiff filed a suit for declaration

and for alternative relief of partition and separate

possession in O.S.No.60/2001 on the file of First

Additional Senior Civil Judge, Bagalkot.

2.

The respondent/defendant failed to contest

the

proceedings.

Accordingly

suit

was

decreed

exparte. Aggrieved by the same, the respondent/

defendant filed application under Order IX Rule 13 of

the Code of Civil Procedure, 1908 (“CPC” for short) in

Civil Misc.No.67/2004 seeking to set aside the exparte

decree passed in O.S.No.60/2001. The said application

was rejected, against which, respondent/defendant

preferred miscellaneous appeal in M.A.No.10/2010

before the First Appellate Court.

3.

Before

the

First

Appellate

Court,

the

present appellant/plaintiff and respondent/defendant

submitted that, the matter will be compromised.

Based on the said submission, the Appellate Court

4

allowed

the

miscellaneous

appeal

filed

in

M.A.No.10/2010 by setting aside the exparte decree

and has remanded the matter to the Trial Court to

record compromise.

4.

After remanding the matter, the suit was

assigned new number as O.S.No.23/2011 as it was

transferred to the Senior Civil Judge Court, Badami.

On remand, the appellant/plaintiff did not appear

before

the

Trial

Court

to

record

compromise.

Therefore, respondent/defendant filed an application

in I.A.No.IV under Order VIII Rule 1 of CPC seeking

leave of the Court to file written statement. However,

since the matter was remanded only to record

compromise and since the appellant/plaintiff has not

come forward to record compromise, the trial Court

has

proceeded

to

reject

the

application

and

consequently held that the earlier judgment and

decree passed in O.S.No.60/2001 stands restored.

5

5.

It is against this judgment and decree

passed in O.S.No.23/2011, the respondent/defendant

preferred an appeal in R.A.No.142/2011 before the

First Appellate Court. The First Appellate Court having

examined the material on record found that the order

of the Trial Court in restoring the earlier judgment and

decree passed in O.S.No.60/2001 is erroneous.