- 1 - HC-KAR NC: 2025:KHC:29449 MFA No. 4090 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 4090 OF 2025 (CPC) BETWEEN: 1. SRI RAVI, S/O LATE MUNIYAPPA, AGED ABOUT 50 YEARS, NO. 1893, 10TH MAIN ROAD, 2ND STAGE, KUMARASWAMY LAYOUT, BANGALORE - 560 078. …APPELLANT (BY SRI. IMRAN PASHA.,ADVOCATE) AND: 1. SRI M MANJUNATH, S/O LATE MUNIYAPPA, PRESENTLY AGED ABOUT 54 YEARS, NO. 14, FLORO MILL ROAD, CHENNASANDRA COLONY, UTTARAHALLI KENGERI MAIN ROAD, SUBRAMANAYAPURA POST, BANGALORE - 560 061. 2. SMT. M USHA, W/O. MUNISWAMY, D/O LATE MUNIYAPPA, PRESENTLY AGED ABOUT 57 YEARS, RESIDENT OF GAURAVANAGAR, JP NAGAR, BENGALURU.-560078. 3. SMT. M JAYANTHI, W/O SRINIVAS, D/O LATE MUNIYAPPA, PRESENTLY AGED ABOUT 52 YEARS, SHANKARPURAM BANGALORE - 560 004 Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29449 MFA No. 4090 of 2025 …RESPONDENTS (BY MISS. JEEVITHA S.,ADVOCATE FOR; SRI. RAJESH A.,ADVOCATE FOR R1) THIS MFA IS FILED U/O.43 RULE 1(d) OF THE CPC, PRAYING TO SET ASIDE THE ORDER DT.05.03.2025 PASSED IN CIVIL MISC.NO.25025/2023 ON THE FILE OF THE LXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-73), FILED U/O.9 RULE 13 OF CPC AND ETC. IA 2/2025 FOR STAY.SL 09.06.2025 THIS APPEAL, COMING ON FOR ORDERS , THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT Defendant No.4 in the suit in O.S.No.26343/2012 has filed this appeal. Being aggrieved by the dismissal of the applications filed under Section 151 of CPC and Section 5 of Limitation Act, dated 05.03.2025, by the LXXII Additional City Civil and Sessions Judge, Bengaluru, the present appeal is filed. 2. Respondent No.1 has filed O.S.No.26343/2012 for partition and separate possession by metes and - 3 - HC-KAR NC: 2025:KHC:29449 MFA No. 4090 of 2025 bounds. The appellant herein is defendant No.4 before the trial Court. The trial Court has placed the defendants exparte and passed the exparte judgment and decree on 05.11.2019. Thereafter, the defendant No.4 has filed Civil Misc.No.25025/2023 under Order IX Rule 13 read with Section 151 of CPC, praying to recall the exparte judgment and decree passed in O.S.No.26343/2012. But, the said Civil Misc.No.25025/2023 is dismissed as barred by limitation. 3. Though the Civil Misc.No.25025/2023 was dismissed on the ground of limitation, but it is assertion of the appellant/defendant No.4 in the suit that the suit schedule property has been given to him by his mother through a Will. Therefore, the execution of Will is required to be proved in the suit where the substantial right is adjudicated. The Court is of the opinion that an opportunity be given to the appellant/defendant No.4 to contest the suit. The remand is at the instance of the defendant No.4/appellant. The plaintiff is once again - 4 - HC-KAR NC: 2025:KHC:29449 MFA No. 4090 of 2025 unnecessarily relegated to the trial Court for no fault of him and this would be compensated by imposing cost of Rs.25,000/- payable to the plaintiff by defendant No.4. Therefore, the order dated 05.03.2025 in Civil Misc.No.25025/2023, passed by LXXII Additional City Civil and Sessions Judge, Bengaluru is liable to be set aside and remanded to the trial Court. Hence, I proceed to pass the following: ORDER I. The appeal is allowed. II. The order dated 05.03.20205 passed in Civil Misc.No.25025/2023, by the learned LXXII Additional City Civil and Sessions Judge, Bengaluru is hereby set aside. III. The matter is remanded to the Trial Court, for reconsideration, subject to payment of cost of Rs.25,000/- payable by the appellant/defendant No.4 to the plaintiff. IV. Since the suit is of the year 2012, the trial Court is directed to expedite the trial as - 5 - HC-KAR NC: 2025:KHC:29449 MFA No. 4090 of 2025 early as possible, within a period of one year from the date of receipt of a copy of this order. V. Both the parties shall appear before the trial Court on 01.09.2025 in O.S.No.26343/2012. SD/- (HANCHATE SANJEEVKUMAR) JUDGE CH List No.: 1 Sl No.: 13