- 1 - NC: 2025:KHC:12304 CRP No. 433 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE R DEVDAS CIVIL REVISION PETITION NO. 433 OF 2019 BETWEEN: SRI GOPAL KRISHNA SHETTY AGED ABOUT 73 YEARS S/O LATE SRINIVASA SHETTY, R/AT M G ROAD, CHIKMAGALUR-577 101 …PETITIONER (BY SRI. VINAYAK KAMATH N., ADVOCATE FOR SRI. C N KAMATH., ADVOCATE) AND: 1. SMT NAGARATHANA W/O SRI D N NAGARAJ, D/O SRI MALLAPPA, 2. SMT C M LEELAVATHI D/O SRI MALLAPPA, 3. SMT C M SHOBHAMANI W/O PARAMESH, D/O SRI MALLAPPA, 4. SMT BHARATHI D/O SRI MALLAPPA, 5. SMT C M POONIMA D/O SRI MALLAPPA, Digitally signed by KRISHNAPPA LAXMI YASHODA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12304 CRP No. 433 of 2019 6. SRI MALLAPPA S/O SRI CHANNABASSAPPA, 7. SRI NANDEESHA C.M. AGED 45 YEARS S/O SRI MALLAPPA, ALL ARE R/AT SHETTY STREET, CHIKMAGALUR-577 101 …RESPONDENTS (BY SRI.N.R.RAVIKUMAR & SRI. GANESH K.S., ADVOCATES FOR R1 TO R5 V/O/D. 17.01.2020, NOTICE TO R6 & R7 IS D/W) THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST THE ORDER DATED 02.01.2018 PASSED ON IA NO. 1 IN C.MISC.NO.3/2017 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND CJM., CHIKKAMAGALURU DISMISSING THE IA NO.1 FILED UNDER SEC.5 OF LIMITATION ACT AND CONSEQUENTLY, THE MAIN PETITION AND ETC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL ORDER The petitioner is aggrieved of the dismissal of the Civil Miscellaneous Petition filed by the petitioner who had sought for setting aside the judgment and decree passed in O.S.No.141/2003 on the ground that the petitioner was - 3 - NC: 2025:KHC:12304 CRP No. 433 of 2019 placed exparte and the plaintiffs have taken advantage of the fact that the petitioner herein was placed exparte in the suit. 2. Learned Counsel for the petitioner submits that the petitioner purchased the suit schedule property at the hands of respondents No.6 and 7 herein. Originally the property belonged to Sri Channabasappa and the property devolved on Smt.Siddamma. Smt.Siddamma had two daughters by name Smt.Channamma and Smt.Mallamma. Smt.Siddamma also had a brother by name Sri Ketturiah. Smt.Siddamma and her brother Ketturiah died more than five decades ago. Amongst the two daughters of Smt.Siddamma, Smt.Channamma had one son by name Sri Mallappa and the other daughter Smt.Mallamma died issueless. Therefore, Sri Mallappa became the absolute owner of the suit schedule property. Sri Mallappa sold the property in favour of the petitioner under registered sale deed dated 03.06.1983. - 4 - NC: 2025:KHC:12304 CRP No. 433 of 2019 3. One of the sons of Sri Mallappa, Sri Nandeesh, had also joined in execution of the sale deed represented by the natural guardian father. However, since Sri Mallappa did not handover possession to the petitioner, the petitioner filed O.S.No.358/1989 before the Addl. Munsiff and JMFC, Chikmagalur, for declaration and possession. A judgment and decree was passed in favour of the petitioner on 19.09.1991. Respondents No.6 and 7 filed a Regular Appeal in R.A.No.13/1992. The Regular Appeal was dismissed on 10.08.2000. The plaintiffs filed RSA No.664/2000. In the judgment dated 25.06.2001 in RSA No.664/2000, this Court held that it did not find any question of law to consider the second appeal and therefore, the appeal was rejected. However, since this Court found that the appellants and their family members are residing in the suit schedule premises, nine months time was granted to the appellants to vacate the premises, subject to the condition that the appellants should file an Affidavit of undertaking to voluntarily vacate the premises. A decree was accordingly drawn on 25.06.2001. - 5 - NC: 2025:KHC:12304 CRP No. 433 of 2019 4. Learned Counsel for the petitioner submits that despite the undertaking given by this Court and the directions issued by this Court in the Regular Second Appeal, when respondents did not vacate the suit schedule premises, the petitioner was constrained to file an execution case. During the course of the execution case, another suit was filed in O.S.No.267/2001 at the hands of the legal heirs of Smt.Mallamma who was the sister of Sri Mallappa. The suit was decreed and the petitioner herein filed a Regular Appeal in R.A.No.61/2013. The Regular Appeal was decided against the petitioner herein. Thereafter, the petitioner filed RSA No.702/2016 and the said matter is still pending consideration before this Court. In the meanwhile, respondents No.1 to 5 filed O.S.No.141/2003 seeking partition and separate possession and while seeking a declaration that the sale deed executed by Sri Mallappa was not binding on the plaintiffs. The petitioner herein was placed exparte and the suit was decreed. The petitioner herein filed the Civil Miscellaneous petition in C.Misc.No.3/2017. Evidence was - 6 - NC: 2025:KHC:12304 CRP No. 433 of 2019 recorded and the respondents herein produced a copy of the judgment and decree passed in O.S.No.196/2008 to show that the petitioner was aware of the judgment and decree passed in O.S.No.141/2003 and he himself had produced a copy of the judgment and decree during the course of the proceedings in O.S.No.196/2008 which was disposed of during the year 2011. 5. The learned Prl. Senior Civil Judge & CJM, Chikmagalur, accepted the said contention made on behalf of respondents No.1 to 4 herein that the petitioner had knowledge of the judgment and decree prior to 2011, but the Miscellaneous Petition was filed only in the year 2017 and therefore, the enormous delay of more than 5 years could not be condoned. Accordingly the Civil Miscellaneous Petition was dismissed. 6. Learned Counsel for the petitioner submits that although the petitioner succeeded in the suit filed by him and an undertaking was given by respondents No.5 and 6 herein before this Court in the Regular Second Appeal that - 7 - NC: 2025:KHC:12304 CRP No. 433 of 2019 they would vacate and handover vacant possession of the suit schedule property to the petitioner herein within nine months from the date of the judgment and decree, nevertheless respondents have conspired to file suit after suit against the petitioner and the petitioner is not able to enjoy the fruits of the sale deed by virtue of which the petitioner purchased the property for valuable sale consideration. At any rate, it is submitted that costs may be imposed on the petitioner and the matter should be permitted to be contested on merits. 7. Learned Counsel for the respondents vehemently contends submits that although the petitioner was aware of the suit being filed at the hands of respondents No.1 to 4 herein, nevertheless the petitioner ignored the notices issued by the Court and therefore the learned Judge has rightly held that delay of more than five years in filing the Civil Miscellaneous Petition cannot be condoned. 8. Having heard the learned Counsels and on perusing the petition papers, this Court finds that the - 8 - NC: 2025:KHC:12304 CRP No. 433 of 2019 respondents being family members have suffered a judgment and decree and respondent No.5 being the karta of the family has given an undertaking before this Court to vacate and handover vacant possession of the suit schedule property within a period of nine months. Nevertheless two suits are filed back to back to deny the fruits of the judgment and decree obtained by the petitioner. The respondents have continued to be in possession of the suit schedule property for more than 14 years after the undertaking was given by them before this Court on 25.06.2001. Having regard to these undisputed facts, this Court is of the considered opinion that the Miscellaneous Petition should be allowed by imposing costs on the petitioner. The matter should be contested on merits. 9. Accordingly, the Civil Revision Petition is allowed. The impugned order dated 02.01.2018 in C.Misc.No.3/2017 is hereby quashed and set aside. Consequently, the Misc. Petition filed by the petitioner - 9 - NC: 2025:KHC:12304 CRP No. 433 of 2019 herein is allowed while imposing cost of Rs.10,000/- on the petitioner payable to the respondents. The suit in O.S.No.141/2003 on the file of the learned Civil Judge (Sr.Dn.) & CJM, Chikmagalur is restored to its original file while recalling the judgment and decree passed in the said suit. Parties to appear before the learned Civil Judge (Sr.Dn.) & CJM, Chikmagalur, in O.S.No.141/2003 on 21st April 2025 without waiting for further notice. Needless to observe that the petitioner who is the defendant in the suit shall be permitted to file necessary application along with the written statement and the same shall be taken on record. Ordered accordingly. Any observation made in this order shall not prejudice the case of any party before the Trial Court. Sd/- (R DEVDAS) JUDGE JT/- CT: JL