- 1 - NC: 2025:KHC:15073 MFA No. 3051 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.3051 OF 2022 (CPC) BETWEEN: GANGADHARA S/O LATE BABU SAPALYA, AGED 56 YEARS, R/O PAPPEETTIMARU HOUSE, BARIMARU VILLAGE, BANTWAL TQ, D K DIST – 576 121. …APPELLANT (BY SRI. DEEPAK S. SHETTY, ADVOCATE) AND: 1. SUNANDA W/O LATE SESSAPPA SAPALYA, AGED MAJOR, R/O PAPPEETTIMARU HOUSE, BARIMARU VILLAGE, BANTWAL TQ, D K DIST – 576 121. 2. DAMODARA S/O LATE SESAPPA SAPALYA AGED MAJOR, R/O PAPPEETTIMARU HOUSE, BARIMARU VILLAGE, BANTWAL TQ, D K DIST – 576 121. 3. RAMAKRISHNA S/O LATE SESAPPA SAPALYA AGED MAJOR, R/O PAPPEETTIMARU HOUSE, BARIMARU VILLAGE, BANTWAL TQ, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:15073 MFA No. 3051 of 2022 D K DIST – 576 121. 4. MOHINI D/O LATE SESAPPA SAPALYA AGED MAJOR, R/O PAPPEETTIMARU HOUSE, BARIMARU VILLAGE, BANTWAL TQ, D K DIST – 576 121. 5. LAXMI D/O LATE SESAPPA SAPALYA AGED MAJOR, R/O PAPPEETTIMARU HOUSE, BARIMARU VILLAGE, BANTWAL TQ, D K DIST – 576 121. 6. MUNDAPPA SAPALYA D/O LATE PAKEERA SAPALYA AGED 80 YEARS, R/O PAPPEETTIMARU HOUSE, BARIMARU VILLAGE, BANTWAL TQ, D K DIST – 576 121. 7. ANNU SAPALYA D/O LATE PAKEERA SAPALYA R/O AMBIKA NILAYA NEHRU NAGAR POST NEAR RAKTHESWARI TEMPLE PUTTUR TQ, D K DIST – 574 203. 8. NARAYANA SAPALYA D/O LATE PAKEERA SAPALYA AGED 72 YEARS R/O ASI, BARKE POLICE STATION MANGALORE TALUK DAKSHINA KANNADA 575 003. 9. VASANTHI D/O LATE BABU SAPALYA AGED 50 YEARS, HOUSEWIFE R/O PAPPEETTIMARU HOUSE BARIMARU VILLAGE, BANTWAL TQ - 3 - NC: 2025:KHC:15073 MFA No. 3051 of 2022 D K DIST - 576 121. 10. SADASHIVA S/O LATE BABU SAPALYA AGED 46 YEARS R/O PAPPEETTIMARU HOUSE BARIMARU VILLAGE BANTWAL TQ, D K DIST - 576 121. 11. GEETHA D/O LATE BABU SAPALYA AGED 49 YEARS, HOUSE WIFE R/O PAPPEETTIMARU HOUSE BARIMARU VILLAGE BANTWAL TQ, D K DIST 576 121 12. YASHODHA D/O LATE BABU SAPALYA AGED 42 YEARS, HOUSEWIFE R/O PAPPEETTIMARU HOUSE BARIMARU VILLAGE, BANTWAL TQ, D K DIST - 576 121. 13. SHIVANANDA S/O LATE BABU SAPALYA AGED 40 YEARS R/O PAPPEETTIMARU HOUSE BARIMARU VILLAGE BANTWAL TQ, D K DIST - 576 121. 14. THANIAPPA S/O LATE BABUSAPALYA AGED 37 YEARS R/O PAPPEETTIMARU HOUSE BARIMARU VILLAGE BANTWAL TQ, D K DIST - 576 121. 15. HARISHA S/O LT BABU SAPALYA AGED 34 YEARS - 4 - NC: 2025:KHC:15073 MFA No. 3051 of 2022 R/O PAPPEETTIMARU HOUSE BARIMARU VILLAGE BANTWAL TQ, D K DIST - 576 121. …RESPONDENTS (BY SRI. SACHIN B S., ADVOCATE FOR R1 TO R8; V/O DATED 25.09.2014, NOTICE TO R9 TO R15 IS D/W) THIS MFA IS FILED U/O.43 RULE 1(t) OF CPC, AGAINST THE ORDER DT.12.09.2017 PASSED ON MISC. CASE NO.22/2015 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K, MANGALURU, DISMISSING THE PETITION FILED U/O.XLI RULE XVII R/W SEC.151 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appellant has filed this appeal challenging the order dated 12.09.2017 passed by the Court of I Addl. District and Sessions Judge, D.K., Mangalore, in Misc. No.22/2015, thereby, Misc. Petition filed under Order XLI Rule XVII r/w Section 151 of CPC for setting aside the order of dismissal for non prosecution in R.A.No.63/2009 is dismissed. 2. There is a delay of 856 days in filing the appeal. This application is vehemently opposed by the respondents. The affidavit is to the effect that the appeal - 5 - NC: 2025:KHC:15073 MFA No. 3051 of 2022 was looked after by the mother of appellants and subsequently, she died in the year 2018. Thereafter there was a communication gap between the appellants and the learned Advocate for the appellants. 3. Under these circumstances, there could not be effective representation in the appeal before the District Judge. Therefore, under these circumstances, the appeal is dismissed for non prosecution. 4. The appellants are the sufferers of judgment and decree in O.S.No.169/2005 (renumbered as No.170/2006) on the file of the Senior Civil Judge, Bantwal, D.K., have preferred an appeal in R.A.No.63/2009 before the Court of I Addl. District and Sessions Judge, Mangaluru. The first appeal is continuation of the suit. As such, the matter is required to be heard on merits, which is a substantial cause for condonation of delay. Therefore, delay in filing the appeal is hereby condoned. - 6 - NC: 2025:KHC:15073 MFA No. 3051 of 2022 5. As stated above, it is deposed that the mother of appellants was looking after the appeal and later on, she died. Under these circumstances, they could not make arrangement of effective representation on behalf of the appellants in the appeal. Inevitably the appeal came to be dismissed for non prosecution. 6. The Court is of the opinion that since the first appeal is continuation of the suit, the evidence has to be reappreciated. Hence, if order of dismissal of the appeal for non prosecution is not set aside, then there would be more hardship to the appellants compared to the respondents. The Court is of the opinion that appeal be heard on merits and as such the first appeal pending before the District Judge Court is required to be heard on merits. Therefore, the appeal is liable to be allowed with cost of Rs.10,000/- payable by the appellants to the respondents. 7. Accordingly, I proceed to pass the following: - 7 - NC: 2025:KHC:15073 MFA No. 3051 of 2022 ORDER (i) The appeal is allowed with cost of Rs.10,000/- payable by the appellants to the respondents. (ii) The order dated 12.09.2017 passed by the I Additional District and Sessions Judge, D.K., Mangalore, in Misc. Case No.22/2015, is hereby set aside. (iii) R.A.No.63/2009 is restored on its file. (iv) The appellate court is directed to dispose of the appeal within a period of 3 months from the date of receipt of copy of this order. SD/- (HANCHATE SANJEEVKUMAR) JUDGE DR List No.: 1 Sl No.: 27