- 1 - HC-KAR NC: 2025:KHC:30633 MSA No. 36 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 36 OF 2025 (RO) BETWEEN: SMT SHIVAMMA D/O LATE MARISIDDALAH, AGED ABOUT 44 YEARS, RESIDING AT VALAGERE VILLAGE, KASABA HOBILI, NANJANGUD TALUK, MYSURU-571 301 …APPELLANT (BY SRI. DHIRAJ A .K., ADVOCATE) AND: SIDDARAJU S/O LATE MARISIDDALAH, AGED ABOUT 45 YEARS RESIDING AT VALAGERE VILLAGE, KASABA HOBLI, NANJANGUD TALUK, MYSURU-571 301 …RESPONDENT (BY SMT. N R PADMA MOHAN, ADVOCATE) THIS MISC.SECOND APPEAL UNDER ORDER XLII RULE(U) CPC PRAYING TO ALLOW THIS APPEAL THEREBY SETTING ASIDE THE JUDGMENT AND DECREE DATED 04.01.2025 PASSED IN R.A.NO.63/2023 BY THE LEARNED SENIOR CIVIL JUDGE, AND JMFC AT NANJANGUD. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30633 MSA No. 36 of 2025 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri. Dhiraj A.K., learned counsel for the appellant and Smt. N.R. Padma Mohan, learned counsel for the respondent. 2. Plaintiff in O.S. No.627/2014 is the appellant. His suit came to be decreed for partition and separate portion by the Trial Court granting 1/4th share in respect of item Nos.2 to 4. In respect of item Nos.1, 5 and 6, suit of the plaintiff came to be dismissed. 3. Being aggrieved by the same, plaintiff filed an appeal in R.A.No.8/2022. Defendant who is the respondent before this Court is a party to said appeal did not chose to challenge grant of 1/4th share in respect of item Nos.2 to 4. - 3 - HC-KAR NC: 2025:KHC:30633 MSA No. 36 of 2025 4. However, before the First Appellate Court, the appeal filed by the plaintiff came to be allowed by judgement dated 07.12.2022 whereby learned Judge in the First Appellate Court modified the degree of the Trial Court granting half share in respect of item Nos.2 to 4 and maintained the dismissal of suit in respect of the remaining properties. 5. Belatedly, the defendant filed appeal against the decree passed in O.S. No.627/2014 in R.A. No.63/2023. 6. An application seeking condonation of delay was also filed by the defendant in vide I.A.No.1 in R.A. No.63/2023. Without considering the said application and without condoning delay appeal of the defendant in R.A.No.63/2023 came to be allowed by order dated 04.01.2025 and decree was set-aside and matter was remitted to the Trial Court for fresh disposal in accordance - 4 - HC-KAR NC: 2025:KHC:30633 MSA No. 36 of 2025 with law. Validity of said judgment is called in question in the second appeal. 7. Reiterating the grounds urged in the appeal memorandum, Sri. Dhiraj A.K. would contend that the approach of the First Appellate Court in entertaining the belated appeal of the defendant without even controlling the delay has resulted in miscarriage of justice and thus sought for allowing the appeal. 8. Per contra, Smt. Padma Mohan would support the impugned order. 9. Having heard the arguments of both sides, this Court noticed that, already I.A.No.8/2022 filed by the plaintiff was allowed by the First Appellate Court and decree passed by the Trial Court in O.S.No.627/2014 was modified by granting half share in item Nos.2 to 4 of the suit property. - 5 - HC-KAR NC: 2025:KHC:30633 MSA No. 36 of 2025 10. However, a belated appeal came to be filed by the defendant who was a party in the earlier appeals as well. The appeal was accompanied by an application under Section 5 of the Limitation Act vide I.A.No.1/2023 in the appeal filed by the defendant and sought for condemnation of delay. It was incumbent on the part of the First Appellate Court to consider the said application filed to condone the delay at the first instance and thereafter entertain the appeal on merits. 11. Needless to emphasise that unless the delay is condoned, appeal cannot be treated as an appeal in the eye of law. Ignoring said aspect of the matter, learned Judge in the First Appellate Court has proceeded to hear the parties on the merits of the matter and set-aside the judgement passed by the Trial Court in O.S.No.627/2014 and remitted the matter to the Trial Court for fresh disposal in accordance with law. - 6 - HC-KAR NC: 2025:KHC:30633 MSA No. 36 of 2025 12. Such a course was not open for the learned judge in the First Appellate Court without condoning delay in filing the appeal. 13. Therefore, the order of the First Appellate Court has resulted in miscarriage of justice which needs interference by this court by exercising the power vested in this Court under Order 43 the Code of Civil Procedure. 14. Accordingly, following order : ORDER (i) The Miscellaneous Second Appeal is allowed. (ii) The impugned judgment passed by the First Appellate Court in R.A. No.63/2023 is set-aside. (iii) Matter is remitted to the First Appellate Court for considering the application seeking condonation of delay, filed by the respondent who is the appellant before the First Appellate Court and defendant before the Trial - 7 - HC-KAR NC: 2025:KHC:30633 MSA No. 36 of 2025 Court in accordance with law before proceeding on merits of appeal. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 38