IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1313/2018 BETWEEN:
SRI T.S.MANJUNATHA S/O LATE SEETHARAMAPPA AGED ABOUT 52 YEARS OCC: SECURITY GUARD R/O DOOR NO.125 DATTAGALLI, MYSORE – 577 124 … APPELLANT (BY SRI BALAGANGADHAR G.S., ADVOCATE ) AND:
1. SRI T.S.HUCHURAYAPPA S/O LATE SEETHARAMAPPA AGED ABOUT 70 YEARS R/O HOUSE NO.1241 3RD CROSS, CHANNAKESHAVANAGARA BEHIND KEB OFFICE SHIKARIPURA SHIMOGA DISTRICT – 577 201 2. SRI MAHADEVAPPA S/O BASAPPA AGED ABOUT 58 YEARS R/O KALAGONAVARA MANE VITTAL NAGARA HOSUR HOBLI SHIKARIPURA TALUK SHIMOGA DISTRICT – 577 201 3. SRI R.D.ANAND S/O RAMACHANDRAPPA AGED ABOUT 57 YEARS R/O HOUSE NO.1241 5TH CROSS, RENUKA NILAYA CHANNAKESHAVA NAGARA SHIKARIPURA SHIMOGA DISTRICT – 577 201 4. SRI P.L.SUBHAKARA S/O LAKSHMAN SHET AGED ABOUT 45 YEARS R/O KANURU HOSAKERI SHIKARIPURA SHIMOGA DISTRICT – 577 201 5. SRI H.BASHA SAB S/O HUSSAIN MIA SAB AGED ABOUT 65 YEARS R/O HOSAMEDARARA KERI MIDDLE SCHOOL ROAD SHIKARIPURA SHIMOGA DISTRICT – 577 201 6. SRI T.S.LAKSHMIKANTHA S/O LATE SEETHARAMAPPA AGED ABOUT 68 YEARS R/O H.NO.53, 1ST CROSS MEDARAKERI VINOBANAGARA SHIMOGA – 577 201 … RESPONDENTS (BY SRI P.N.HARISH, ADVOCATE C/R3-R5) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:28.03.2018 PASSED IN R.A.NO.59/2013 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL FILED AGAINST THE ORDER DATED 04.12.2012 PASSED ON I.A. IN FDP NO.19/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, ALLOWING THE APPLICATION FILED UNDER ORDER 1 RULE 10 OF CPC R/W ORDER 23 RULE 3(a) OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard. This second appeal arises out of the judgment and decree dated 28.03.2018 in Regular Appeal No.59/2013 passed by the III Additional District Judge, Shivamogga.
2. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the appellant as not maintainable. Appellant had filed O.S.No.77/2004 against present respondent Nos.1 and 2 for partition. That suit was partly decreed on 30.06.2010.
3. The appellant filed F.D.P.No.19/2012 respondent Nos.1 and 2 seeking final decree in pursuance of the preliminary decree in O.S.No.77/2004. Appellant and respondent Nos.1 and 2 entered into a compromise in F.D.P.No.19/2012 on 23.08.2012 in respect of item Nos.1 and 4 of the preliminary decree schedule properties. Learned Counsel for the appellant has made available the certified copy of the order sheet in F.D.P.No.19/2012, which shows that on 18.8.2018 file is closed.
4. On 1.10.2012, respondent Nos.3 to 5 filed an application before the final decree court under Order I Rule 10 CPC r/w Order XXIII Rule 3(a) CPC in F.D.P.No.19/2012 to implead them as parties to the proceedings and set aside the compromise decree, on the ground that the said decree is obtained by playing fraud on court and by suppression of the earlier preliminary decree between the same parties in respect of the same subject matter of the proceedings.
5. The trial court vide order dated 4.12.2012 allowed the application to implead the parties and simultaneously set aside the compromise final decree dated 5.9.2012. The appellant challenged the said order before the first appellate court in R.A.No.59/2013. The first appellate court by the impugned judgment and decree dismissed the appeal on the ground that against the order of the trial court, appeal does not lie and the remedy of the appellant is to file appeal under Order XLIII Rule 1 CPC.
6. Both Counsel submit that against such order of the trial court, the appeal under Order XLIII Rule 1 also does not lie. It is further submitted that the trial court has not considered the application for setting aside the compromise decree on merits and after allowing the application to implead the parties had set aside the compromise decree.
7. Under these circumstances, learned Counsel for the appellant submits that he may be permitted to withdraw this appeal with liberty to take appropriate action in the final decree proceedings.
8. The said submission is recorded. The appeal is dismissed as withdrawn with liberty to the appellant to pursue the appropriate remedy in accordance with law in final decree proceedings.
In view of disposal of the appeal, I.A.No.1/2018 does not survive for consideration and stood disposed of accordingly.
Sd/- JUDGE KNM/-