- 1 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11THDAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 6575 OF 2015 (CPC) BETWEEN: SMT. SUSHEELAMMA W/O LATE SRI.S.M.REDDY, SINCE DEAD BY LR SMT.AMATHULURVAH @ MAMATHA M, D/O LATE SRI.S.M.REDDY, AGED ABOUT 41 YEARS, RESIDING AT NO.109A, 1STFLOOR, ESTEEM ENCLAVE, BENGALURU – 560076. …APPELLANT (BY SRI. HEMANTH.S,ADVOCATE) AND: 1. SRI. MUNIYAPPA S/O SRI.JUNJAPPA, SINCE DEAD REPRESENTED BY HIS LEGAL REPRESENTATIVES: a) PUTTAMMA W/O LATE MUNIYAPPA RESIDING AT NO.160, VAJARAHALLI,(BYAPPANAPALYA), TALAGHATTAPURA POST, BENGALURU SOUTH TALUK, BENGALURU – 560062. R Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 b) SHASHIKUMAR S/O LATE MUNIYAPPA, RESIDING AT NO.160, VAJARAHALLI,(BYAPPANAPALYA), TALAGHATTAPURA POST, BENGALURU SOUTH TALUK, BENGALURU – 560062. …RESPONDENTS (BY SRI N.K. HARISH ADVOCATE FOR R1(A&B)) THIS MFA FILED U/O 43, RULE 1(c) OF CPC, AGAINST THE ORDER DATED15.7.2015 PASSED IN MISC.PETITION NO.323/010 ON THE FILE OF THE 64TH ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU, C/C OF 15TH ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY, C/C. DISMISSING IA NO.1 FILED I/O 21, RULE 106 OF CPC, R/W ORDER 9, RULE 9 OF CPC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The plaintiff in O.S.No.6458/1991 who obtained the decree in the said suit has filed the Execution Petition No.882/1995 being the decree holder, butthe said execution petition was dismissed for default on 07.10.2003 and thereafter, filed Misc.Petition.No.323/2010 under Order 21 Rule 106 of CPC r/w Order 9 Rule 9 of CPC praying to set aside the order of dismissal of execution petition for default, but the said Misc.Petition.No.323/2010 - 3 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 came to be dismissed on the reason that there is delay in filing the said petition. Thus, against the said order, the present appeal is filed. 2. The appellant herein has filed the suit in OS.No.6458/1991 for mandatory injunction against the respondent herein who is the defendant in the said suit for removal of shed constructed on the property belonging to the plaintiff and also for permanent injunction. The said suit in O.S.No.6458/1991 was decreed on 04.08.1995. Thereafter, the plaintiff filed the Execution Petition No.882/1995, but it was dismissed for default on 07.10.2003. Thereafter, the petitioner/appellant herein filed Misc.Petition.No.323/2010 under Order 21 Rule 106 of CPC read with Order 9 Rule 9 of CPC praying to set aside the dismissal of petition for default. The Executing Court has dismissed the said petition as it is barred by limitation. Therefore, being aggrieved by this, the plaintiff/decree holder has preferred the present appeal. - 4 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 3. Learned counsel for the appellant submitted that the plaintiff being an old age woman is having mentally retarded son. Furthermore, the plaintiff’s daughter who is the appellant/plaintiff was residing in Dubai met with an accident and therefore, when the plaintiff had suffered such severe setback in life could not approach the Court in time. Therefore, due to such inevitability, there may be delay in filing the Misc. Petition before the Executing Court. Instead of considering the same, in a magnanimous way approached the technicality of law in dismissing the petition rendering virtually the decree to become in nullity, so the plaintiff is not able to enjoy the fruit of decree. Therefore, prays to allow the appeal and set aside the order passed in Misc. Petition by restoring the execution petition before the Executing Court. 4. In support of the submission, learned counsel for the appellant places reliance on the following decisions: - 5 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 (a) G.P.Srivastava Vs. R.K.Raizada reported in (2000) 3 SCC 54 (b) Rafiq Vs. Munshilal reported in AIR 1981 SC 1400 (c) Collector, Land Acquisition Vs. Mst.Katiji reported in AIR 1987 SC 1353 (d) Sangram Singh Vs. Election Tribunal reported in AIR 1955 SC 425 (e) Manohar Lal Vs. Ugrasen reported in (2010) 11 SCC 557 5. On the other hand, learned counsel for the respondent/defendant submitted that there is enormous delay of 7 years in filing the Misc. Petition, for which, there is no sufficient explanation for condonation of delay. Therefore, learned counsel for the respondent justified the dismissal of Misc. Petition as barred by limitation. Further submitted that, though, the execution petition was dismissed on 07.10.2003 and the daughter had come to India in the year 2007, but even thereafter there was delay of 3 years in filing the Misc. Petition. Therefore, considering all these factors, the Executing Court has found that the plaintiff/appellant was dormant over the - 6 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 issue, therefore, she is not entitled and accordingly, dismissed the Misc. Petition. Hence, prays to dismiss the appeal. 6. In support of the submission, learned counsel for the respondent places reliance on the following decisions: (i) Pathapati Subba Reddy (Died) by L.Rs. & Others Vs. The Special Deputy Collector (LA) reported in SLP (CIVIL).NO.31248/2018 7. Considering the rival submissions made by both the learned counsels, the points that arise for consideration are as follows: (i) Whether, the appellant/plaintiff/decree holder makes out sufficient ground for allowing Misc.Petition.No.323/2010 by explaining the delay? - 7 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 (ii) Whether, under the facts and circumstances of the case, the order passed by the Executing Court in dismissing the petition requires interference by this Court? 8. The facts in the present case are not disputed. Smt.Susheelamma who is the mother of the appellant filed the suit for mandatory injunction for removal of construction of shed made by the defendant and for permanent injunction by filing the suit in O.S.No.6458/1991. The said suit was decreed on 04.08.1995 directing the defendant to remove the shed constructed on the suit property by issuing relief of mandatory injunction and also grant the relief of permanent injunction after removing the shed constructed on the suit property. The said judgment and decree attained finality. 9. Since, the respondent/defendant has not obeyed the decree passed in the suit in - 8 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 O.S.No.6458/1991, therefore, Smt.Susheelamma was constrained to file Execution Petition No.882/1995, but the said petition was dismissed for default on 07.10.2003. Thereafter, the daughter of the decree holder has filed Misc.Petition.No.323/2010 under Order 21 Rule 106 of CPC read with Order 9 Rule 9 of CPC praying to set aside the order of dismissal of execution petition for default. The said misc. Petition was filed in the year 2010. 10. The evidence given by plaintiff/decree holder is that she is the widow having son who is mentally retarded person and daughter who was residing in Dubai. The plaintiff/decree holder was an old age lady being widow, therefore, some absence was occurred on the part of plaintiff in appearing before the Executing Court. Therefore, the execution petition came to be dismissed for default on 07.10.2003. It is further evidence that the daughter was residing in Dubai met - 9 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 with an accident and her spinal cord was severally injured making the daughter of the decree holder/plaintiff confined to the wheel chair. Therefore, the plaintiff/decree holder had suffered much in life as it is borne out from the evidence on record as per Ex.P.1 to Ex.P.18, which are medical records. 11. Therefore, under these circumstances, due to severe setback in the family of the plaintiff/decree holder could not prosecute the executing petition promptly resulting in dismissal of the execution petition for default. The plaintiff-Smt.Susheelamma died in the year 2008. Thereafter, the daughter had filed Misc.Petition.No.323/2010 for setting aside the order of dismissal of execution petition for default. Though, there is delay of 7 years in filing restoration of execution petition, but the same has to be considered in a lenient way considering the facts and circumstances involved in the case. An explanation to the delay cannot be considered in a rigid manner volunteering to explain - 10 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 the delay on every day delay. Justice should be given on substantial cause rather to approach the technicality of law. The Hon’ble Supreme Court in the case of Collector, Land Acquisition Vs. Mst.Katijiat paragraph Nos.1, 2, 3 and 4 observed as follows: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.” 12. The condonation of delay shall be considered on whether the delay is caused deliberately or beyond the - 11 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 circumstances. Just because, the delay is not a ground to throw away the case involving merits in the case, in the present case, the plaintiff though successful in obtaining the decree for mandatory injunction and permanent injunction and for executing the said decree, filed the execution petition, but dismissed for default. There might have been delay in preferring the misc. petition, but under the facts and circumstances involved in the case as discussed above, the same shall be considered in a magnanimous way rather to approach the technicality of law. In this regard, the Executing Court has committed error that there is no substantial cause made out for condonation of delay. What the plaintiff suffered as above discussed that the plaintiff- Smt.Susheelamma had a son who is mentally retarded person and daughter who was residing in Dubai had met with severe accident and confined to wheel chair as revealed in the medical records, then expecting prompt filing of petition before the Court cannot be expected. - 12 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 Therefore, the Executing Court had swayed away the technicality of law by not condoning the delay. 13. Learned counsel for the respondent has relied on the decision of the Hon’ble Supreme Court in the case of Pathapati Subba Reddy (Died) by L.Rs. & Others Vs. The Special Deputy Collector (LA), wherein at paragraph No.24 it is observed as follows: “24. It would be beneficial to quote paragraph 12 of the aforesaid decision which clinches the issue of the manner in which equilibrium has to be maintained between adopting liberal approach and in implementing the statute as it stands. Paragraph 12 reads as under: "12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.". The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, - 13 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 "inconvenience is not" a decisive factor to be considered while interpreting a statute." 14. Learned counsel for the respondent by referring the said dictum has stated that, in the present case, there is delay of 7 years in filing the misc. petition. Therefore, though, it is harsh to the appellant/petitioner/decree holder, but inevitably they have to accept the truth regarding the law. Therefore, by placing the above decision, prays to dismiss the appeal. 15. The Hon’ble Supreme Court has observed in the above context that the delay caused was not on genuine ground, but it was artificial delay caused rendering that the petition is barred by limitation. If the delay is caused, the burden lies on the appellant/decree holder to explain as to why such delay is caused and whether it is deliberate or genuine one or whether on account of negligence or whether there is any malafide intention in causing the delay. - 14 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 16. Upon considering the facts and circumstances as above discussed, as it is revealed from the evidence, the situations are beyond control. Therefore, there could not be anydeliberate reason in causing such delay and also the mother of the plaintiff being old age widow was constrained to look after her mentally retarded son and died in the year 2008. In the meanwhile, the daughter met with an accident making her to confine to the wheel chair and after she came to India filed the Misc. Petition and hence, there is delay. 17. Therefore, considering these factors, the appellant has made out sufficient ground for condonation of delay in restoration of execution petition. Otherwise, if the appeal is dismissed, then there would be injustice to the appellant. Though, the appellant is the decree holder, she will not able to enjoy the decree, in case the appeal is dismissed and if execution petition is not restored. Therefore, for the - 15 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 aforesaid reasons, point Nos.1 and 2 are answered in affirmative. 18. Hence, I proceed to pass the following ORDER (i) The appeal is allowed. (ii) The impugned order dated 15.07.2015 passed in Misc.Petition.No.323/2010 on the file of LXIV Addl. City Civil and Sessions Judge, Bengaluru (CCH.No.65) & concurrent charge of XV Addl. City Civil & Sessions Judge, Bengaluru (CCH.NO.3), in dismissing I.A.No.1is hereby set aside. (iii) Misc.Petition.No.323/2010 filed under Order 21 Rule 106 of CPC r/w Order 9 Rule 9 of CPC is hereby allowed. (iv) Execution Petition No.882/1995 is restored on its board for consideration in accordance with law. - 16 - NC: 2025:KHC:10337 MFA No. 6575 of 2015 (v) The Executing Court shall dispose of the execution petition as per law as expeditiously as possible. SD/- (HANCHATESANJEEVKUMAR) JUDGE PB List No.: 1 Sl No.: 52