- 1 - HC-KAR NC: 2025:KHC-D:15685 RSA No. 100068 of 2025 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 17TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 100068 OF 2025 (DEC/INJ) BETWEEN: 1. IRANNA S/O. GANGAPPA NERTI AGE: 55 YEARS, OCC. AGRICULTURE R/O. BATTUR-582116, TQ. LAXMESHWAR, DIST. GADAG. 2. MAHANTESH S/O. GANGAPPA NERTI, AGE: 53 YEARS, OCC. AGRICULTURE, R/O. BATTUR-582116, TQ. LAXMESHWAR, DIST. GADAG. …APPELLANTS (BY SRI. C.S.SHETTAR, ADVOCATE) AND: 1. MAHADEVAKKA W/O. SHARANAPPA NERTI, AGE: 66 YEARS, OCC. HOMEMAKER, R/O. HALLUR-581119, TQ. LAXMESHWAR, DIST. GADAG. 2. SUSHILAWWA W/O. MUTTANNA MUDAKANNAVAR, AGE: 43 YEARS, OCC. HOMEMAKER, R/O. HALLUR-581119, TQ. LAXMESHWAR, DIST. GADAG. 3. MALLAPPA S/O. FAKKIRAPPA NERTI, AGE: 56 YEARS, OCC. AGRICULTURE, R/O. BATTUR-582116, TQ. LAXMESHWAR, DIST. GADAG. 4. NAGAPPA S/O. FAKKIRAPPA NERTI, AGE: 54 YEARS, OCC. AGRICULTURE, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.19 11:50:08 +0530 - 2 - HC-KAR NC: 2025:KHC-D:15685 RSA No. 100068 of 2025 R/O. BATTUR-582116, TQ. LAXMESHWAR, DIST. GADAG. 5. PUTTAVVA W/O. MAHADEVAGOUDA PATIL, AGE: 61 YEARS, OCC. HOMEMAKER, R/O. JANATA QUARTERS, KHANTOTA GADAG-582101, TQ. DIST. GADAG. 6. CHAMBAWWA W/O. MANJAPPA KASHETTI, SINCE DECEASED BY LRS., MANJAPPA W/O. NEMMANNA KASHETTI, AGE: 58 YEARS,, OCC. AGRICULTURE, R/O. NEAR BYADAGI RAILWAY STATION, BYADAGI-581106, TQ. BYADAGI, DIST. HAVERI. 7. PUSHPA W/O. MANJUNATH DANNUR, AGE: 30 YEARS, OCC. HOMEMAKER, R/O. NEAR BYADAGI RAILWAY STATION, BYADAGI-581106, TQ. BYADAGI, DIST. HAVERI. 8. CHANNAVVA W/O. FAKKIRAPPA NERTI, AGE: 82 YEARS, OCC. HOMEMAKER, R/O. BATTUR-582116, TQ. LAXMESHWAR, DIST. GADAG. 9. GANGAPPA S/O. BASAVANNEPPA NERTI, AGE: 85 YEARS, OCC. AGRICULTURE, R/O. BATTUR-582116, TQ. LAXMESHWAR, DIST. GADAG. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 R/W. ORDER 41 RULE 1 OF CPC, PRAYING TO ADMIT THE APPEAL AND CALL FOR THE RECORDS OF THE COURTS BELOW AND ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.51/2018 DATED 04.01.2025 PASSED BY THE I ADDL. PRINCIPAL JUDGE FAMILY COURT, GADAG AND THE JUDGMENT AND DECREE PASSED BY LEARNED SENIOR CIVIL JUDGE AND JMFC, LAXMESHWAR IN O.S. NO.2/2017 (OLD NO.106/2009) DATED 27.08.2018 AND THEREBY DECREE THE SUIT FILED BY APPELLANTS IN O.S.NO.02/2017 (OLD NO.106/2009) AND ETC. - 3 - HC-KAR NC: 2025:KHC-D:15685 RSA No. 100068 of 2025 THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) The learned counsel appearing for the appellants files a memo for withdrawal, which reads as below: “MEMO FOR WITHDRAWAL That Appellants had filed suit for declaration and permanent injunction against the Respondents before the Trial Court. Said suit is dismissed by the Courts below and the same is in challenge in this appeal. The cause of action to file the suit in the present form is the initiation of the collusive partition suit by the Respondents 1 and 2 herein. In the said suit, these Appellants were admittedly not arrayed as parties and only in the execution proceedings, passing of judgments is brought to their knowledge. Hence, these Appellants have filed an application in I.A. No. III U/O. XXI Rule 97 CPC in Ε.Ρ. Νο.6/2013. Reserving liberty to urge all these contentions in the said proceedings in view of Section 47 of CPC and keeping open all the contentions urged herein and, Appellants seeks to withdraw this appeal and suit in the ends of justice and equity.” 2. It is submitted that the appellants have filed an application under Order XXI Rule 97 of CPC in E.P.No.6/2013. Admittedly, the appellants were not arrayed as parties in the execution proceedings and therefore, their claim so far as the - 4 - HC-KAR NC: 2025:KHC-D:15685 RSA No. 100068 of 2025 suit schedule property is concerned can very well be considered by the Executing Court under Order XXI Rule 97 of CPC. Therefore, this Court do not find any impediment in allowing the appellants to withdraw the appeal so that they can pursue their remedy under Order XXI Rule 97 of CPC. Hence, the appeal stands dismissed as withdrawn with liberty to the appellants to pursue their remedy as prayed. 3. All questions are kept open. SD/- (C M JOSHI) JUDGE SSP CT:PA LIST NO.: 1 SL NO.: 28