- 1 - NC: 2025:KHC-K:2504 RSA No. 200411 of 2023 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 26TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200411 OF 2023 (PAR/POS) BETWEEN: ASHOK S/O DHANSING PAWAR @ LAMANI, AGE: 44 YEARS, OCC: CONSTABLE IN BSF, R/O: RAUGHAT, SATE OF CHITTISGHAD THROUGH HIS POWER OF ATTORNERY HOLDER VIJIAYAKUMAR S/O DHANASING PAWAR @ LAMANI AGE: 41 YEARS, OCC: AGRICULTURE, R/O: BANJARA JEWELERS TELAGI ROAD, B. BAGEWADI, DIST: VIJAYAPURA. …APPELLANT (BY SRI SANJEEVKUMAR C PATIL, ADVOCATE) AND: 1. JAGANNATH S/O LACHAMU LAMANI @ PAWAR AGE: 73 YEARS, OCC: PENSIONER 2. SONABAI W/O JAGANNATH LAMANI @ PAWAR AGE: 65 YEARS, OCC: HOUSEHOLD WORK, Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2504 RSA No. 200411 of 2023 3. LAXMIKANT S/O JAGANNATH LAMANI @ PAWAR AGE: 46 YEARS, OCC: AUTO DRIVER, 4. VIJAYALAXMI W/O BHAGAVANT RATHOD, AGE: 43 YEARD, OCC: HOUSEHOLD WORK, 5. KUMARI ANITA D/O JAGANNATH LAMANI @ PAWAR, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, 6. ANILKUMAR W/O JAGANNATH LAMANI @ PAWAR, AGE: 35 YEARS, OCC: STUDENT, ALL ARE R/O: RAJANAL L.T. AT POST ATHARGA, TQ: AND DIST: VIJAYAPURA. 7. RAJESHWARI W/O SRINATH DODAMANI, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O: DEVAR HIPPARAGI, TQ: SINDAGI, DIST: VIJAYAPURA. …RESPONDENTS (BY SRI RAVI B. CHAWAN, ADVOCATE FOR R2 TO 7; V/O DATED 17.04.2025, R2 TO R7 ARE TREATED AS LRS OF DECEASED R1) THIS REGULAR SECOND APPEAL IS FILED UNDER 100 OF THE CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE ORDER DATED 16.09.2023, PASSED BY THE IV ADDITIONAL DISTRICT SESSIONS JUDGE, VIJAYAPURA IN R.A.NO.76/2020 AND JUDGMENT AND DECREE DATED 09.10.2014, PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C., INDI, IN O.S.NO.29/2013, BY ALLOWING THIS APPEAL AND DISMISS THE SUIT, IN THE INTEREST OF JUSTICE AND EQUITY. - 3 - NC: 2025:KHC-K:2504 RSA No. 200411 of 2023 THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This appeal is filed challenging the Judgment and the decree in O.S No.29/2013 on the file of Senior Civil Judge, Indi and the judgment and decree in RA No.76/2020 on the file of IV Additional District Judge, Vijayapura. 2. The appellant has questioned the decree in O.S No.29/2013. It is the decree for partition in a suit filed by the wife and the children of the appellant’s vendor. The decree is challenged on the premise that the said decree is an ex-parte decree and notice is not duly served on him, and even on merit, the decree for partition is not sustainable as the property purchased by the appellant from his vendor is the self acquired property of his vendor and not the joint family property as held by the Trial Court. The appeal filed by the appellant before the First Appellate Court questioning the judgment and decree on the aforementioned grounds is not considered on merit, on the - 4 - NC: 2025:KHC-K:2504 RSA No. 200411 of 2023 premise that there is a delay of 5 years and 8 months in filing the appeal. 3. Learned counsel appearing for the appellant would contend that the First Appellate Court failed to take note of the fact that the appellant applied to the Trial Court invoking Order IX Rule 13 of the Code of Civil Procedure (for short ‘Code’) to set aside the decree on the premise that the notice is not duly served on him and he was working in Chhatisgarh and notice is allegedly sent to his address in Basavanabagewadi. However, after the dismissal of the said application, he filed an appeal and the same was dismissed without considering the case on merits. He would further submit that the delay should have been condoned and the appellant should have been permitted to contest the matter by filing the written statement and cross- examining the plaintiff, as the suit filed by the wife and children of his vendor is a collusive suit. 4. Learned counsel appearing for the plaintiffs/respondents on the other hand would contend that the appellant ought to have filed the appeal challenging the decree instead of filing an application under Order IX Rule 13 of the - 5 - NC: 2025:KHC-K:2504 RSA No. 200411 of 2023 Code. Since summons was duly served on him he could not have applied Order IX Rule 13 of the Code, and the same is dismissed on merits, and he has accepted the said order, as such, the appeal after 5 years and 8 months against the decree is not maintainable. 5. This Court has considered the contentions raised at the bar and perused the records. 6. Substantial questions of law for consideration are as under. i) Whether the first appeal filed by the appellant / defendant challenging the ex- parte decree is maintainable after the dismissal of an application under Order IX Rule 13 of the Code? ii) Whether the First Appellate Court is justified in dismissing the appeal on the premise that there are no sufficient grounds to condone the delay of 5 years and 8 months in filing the first appeal. 7. The person who has suffered the ex-parte decree has two different remedies. One is under Order IX Rule 13 of the Code to set aside the ex-parte decree, which is required to be filed before the same Court that has passed the decree, and another remedy is to file an appeal under Section 96 of the Code. - 6 - NC: 2025:KHC-K:2504 RSA No. 200411 of 2023 8. Dismissal of an application under Order IX Rule 13 of the Code does not curtail the right of the defendant who has suffered an ex-parte decree to challenge the decree on merits by filing the appeal. 9. The defendant before this Court filed an application under Order IX Rule 13 of the Code to contend that the service of notice against him is invalid. It was not accepted by the Court which passed the decree. Accordingly, the Court dismissed the application on the premise that no ground is made out to hold that service of notice is improper. 10. Thereafter, the defendant has filed the regular appeal and filed an application to condone the delay of 5 years and 8 months on the premise that he was bonafide prosecuting the application under Order IX Rule 9 of the Code. There is no dispute that the application under Order IX Rule 9 of the Code is filed within the prescribed period of limitation. 11. After the dismissal of the said application under Order IX Rule 13 of the Code, the appellant chose to file the regular appeal and has moved an application to condone the delay. Said application is dismissed. - 7 - NC: 2025:KHC-K:2504 RSA No. 200411 of 2023 12. The First Appellate Court committed an error in not condoning the delay of 5 years 8 months despite, it is an admitted fact that the appellant is prosecuting his remedy before the Court which passed the decree by invoking Order IX Rule 13 of the Code. This Court is of the view that the appellant was not under an obligation to file the regular appeal simultaneously by invoking Section 96 of the Code, when his application under Order IX Rule 13 of the Code is still pending consideration. 13. It is also noticed that the First Appellate Court has not considered the appeal on merits. Under these circumstances, this Court would have remitted the matter to the First Appellate Court for fresh consideration. Again, it is noticed that the appellant has not filed the written statement before the Trial Court has remained ex-parte. Before this Court, the appellant applied to accept the written statement. The appellant has produced the documents to substantiate his contentions. 14. From the circumstances already discussed, this Court is of the view that the appellant should be permitted to - 8 - NC: 2025:KHC-K:2504 RSA No. 200411 of 2023 contest the matter before the Trial Court by filing a written statement and producing evidence. The inaction on the part of the appellant has caused considerable inconvenience to the plaintiff as they had to face this litigation. 15. Under these circumstances, this Court is of the view that, in the interest of justice, the appellant should be directed to pay Rs.15,000/- to the plaintiffs. Payment of cost is a condition precedent to contest the matter before the Trial Court. 16. Hence the following: ORDER i) The appeal is allowed in part. ii) Judgment and decree dated 16.09.2023 in R.A No.76/2020 on the file of IV Additional District Judge, Vijayapura are set aside. iii) The judgment and decree dated 09.10.2014 in O.S No.29/2013 on the file of Senior Civil Judge, Indi are set aside. iv) The matter is remitted to the Trial Court for fresh consideration. - 9 - NC: 2025:KHC-K:2504 RSA No. 200411 of 2023 v) The written statement filed by the appellant is accepted, subject to the appellant paying Rs.15,000/- to the plaintiff on the date of appearance before the Trial Court. vi) The parties shall appear before the Trial Court on 06.06.2025 without any further notice. vii) It is made clear that nothing is expressed on the merits of the matter. viii) All contentions kept open. Sd/- (ANANT RAMANATH HEGDE) JUDGE THM/List No.: 1 Sl No.: 50