- 1 - HC-KAR NC: 2025:KHC:49218 RSA No. 1273 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1273 OF 2025 (PAR) BETWEEN: 1. YOGESHWARAIAH S/O H M MARULAPPA (DIED ON 22/07/2024 AFTER THE DISPOSAL OF R.A.) REP. BY LEGAL REPRESENTATIVES SMT. ARATHI, W/O LATE YOGESHWARAIAH AGED ABOUT 47 YEARS AGRICULTURIST 2. MISS DEEPA, D/O LATE YOGESHWARAIAH AGED ABOUT 21 YEARS AGRICULTURIST 3. MASTER DRUVA H Y S/O LATE YOGESHWARAIAH AGED ABOUT 14 YEARS MINOR REP. BY MOTHER AND NATURAL GUARDIAN 1ST APPELLANT – SMT. ARATHI W/O LATE YOGESHWARAIAH AGED ABOUT 47 YEARS AGRICULTURIST ALL ARE R/O MARUTHINAGARA HULIYARU, CHIKKANAYAKANAHALLI TALUK TUMAKURU DISTRICT-572218 …APPELLANTS (BY SRI A V GANGADHARAPPA, ADVOCATE) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49218 RSA No. 1273 of 2025 AND: 1. H. M. MARULAPPA S/O LATE MALLAPPA AGED ABOUT 87 YEARS AGRICULTURIST 2. SIDDAPPA S/O H M MARULAPPA AGED ABOUT 57 YEARS AGRICULTURIST BOTH ARE R/O MARUTHINAGARA HULIYARU CHIKKANAYAKANAHALLI TAUK TUMAKURU DISTRICT-572218 3. SMT. M KAMALA W/O G M UMESH D/O H M MARULAPPA AGED ABOUT 50 YEARS R/O GARUGADAHALLI PANCHANAHALLI HOBLI KADURU TALUK CHIKKAMAGALURU DISTRICT-577182 …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE ORDER DATED 23.08.2022 PASSED ON I.A.NO.I IN F.R.(R.A) NO.10067/2019 ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, TIPTUR AND ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH - 3 - HC-KAR NC: 2025:KHC:49218 RSA No. 1273 of 2025 ORAL JUDGMENT Heard the learned counsel appearing for the appellants on I.A.No.1/2025 wherein prayed to grant a leave to prefer this appeal as appellants. 2. In support of the application, an affidavit is sworn to that her husband passed away on 22.07.2024. It is stated in the affidavit that her husband sustained injuries in the road accident and death was directly attributed to the said injuries and related causes. He did not regain his health and only suffered. The medical treatment obtained by him did not make any improvement in his health. Now, it is learnt that respondents have filed FDP No.4/2018 to enforce the preliminary decree. Now, she came to know that she has to approach this Court. She is also having tender aged children and her husband passed away subsequent to the passing of the judgment in FR(R.A) No.10067/2019 on 23.08.2022 and consequent upon his death, she has to pursue the remedy before this Court. 3. For the reasons stated in the affidavit accompanying to the application, I.A.No.1/2025 is allowed. - 4 - HC-KAR NC: 2025:KHC:49218 RSA No. 1273 of 2025 4. Heard on I.A.No.2/2025 wherein prayed this Court to condone the delay of 989 days in filing this appeal. 5. In the affidavit, same reasons are assigned for condonation of delay. The other reason assigned for condonation of delay that now she came to know that she has to approach the High Court by way of filing second appeal. Her children are of very tender age and she has to look after them and she has suffered from COVID from March 2020 to May 2022 and even now, she has not come out of that effects. She was not doing well and she was suffering from COVID related ailments. Consequently, there was no money to meet the litigation expenses and after borrowing the same from her relatives and well-wishers, this appeal is filed without any loss of time. 6. Having considered the grounds urged in the application and also on perusal of the materials available on record, it disclose that the suit was filed by the father of the original appellant in the year 2016 in O.S.No.1/2016 against his children and her husband appeared and filed written statement in that suit. The Trial Court also framed an Issue that the - 5 - HC-KAR NC: 2025:KHC:49218 RSA No. 1273 of 2025 defence was taken that already there was a partition between plaintiff and defendants under partition deed dated 24.09.2010. Inspite of the said defence, her husband not contested the matter and not adduced any evidence and judgment was passed by the Trial Court on 17.08.2017. The first appeal was filed in the year 2019 and the same was numbered as FR since there was a delay of 2 years 4 months and her husband himself was examined before the First Appellate Court with regard to delay is concerned taken note of the document of Ex.P1 which pertains to the year 2011. Ex.P2 shows that appellant is under investigation and follow up for traumatic head injury with delayed post traumatic epilepsy. Ex.P3 is also dated 22.10.2012. Having taken note of these documents, the First Appellate Court comes to the conclusion that the reason assigned for condonation of delay in filing first appeal is not satisfactory and dismissed the application filed under Section 5 of the Limitation Act on 23.08.2022. The present second appeal is filed on 07.08.2025. The records discloses that the original appellant not contested the suit, even filed the first appeal with delay of 2 years 4 months and present appeal is filed with delay of 989 days. It is not in dispute that when the order was - 6 - HC-KAR NC: 2025:KHC:49218 RSA No. 1273 of 2025 passed by the First Appellate Court, husband of appellant No.1 was alive and her husband died in the year 2024 and the order was passed by the First Appellate Court in the year 2022 but her husband did not take any steps to file the appeal during his lifetime even though the application filed for condonation of delay was dismissed by the First Appellate Court. The first appeal was also with delay of 2 years 4 months and present appeal is also with delay of 989 days. When the father of the original appellant had approached the Court for the relief of partition in the year 2016, at that time, he was aged about 75 years and now it appears to be he is aged about 85 years. When such materials are available before the Court disclosing that throughout, the original appellant was not diligent in contesting the case even though written statement was filed in the original suit and appeal also filed belatedly with the delay of 2 years 4 months. The present appeal is also filed almost after 3 years. When such being the case, it is not a case to condone the delay since the reason assigned in the application is not satisfactory and each day delay has not been explained. When there is no sufficient cause shown to condone the delay, the question of condoning the delay of 989 days does not arise. - 7 - HC-KAR NC: 2025:KHC:49218 RSA No. 1273 of 2025 7. The Apex Court also in the recent judgment reported in 2025 SCC Online SC 1969 in the case of Shivamma (Dead) by Lrs., vs. Karnataka Housing Board and others in paragraphs 140, 141, 142 categorically held that a lethargic litigant cannot be encouraged while condoning the delay unless the delay is explained properly and each day delay ought to have been explained and without considering the sufficient cause for condoning the delay, the matter cannot be considered on merits. In the case on hand, there was a delay of 989 days in filing the appeal and the same is not explained satisfactorily. Hence, I do not find any ground to allow the application. Accordingly, I.A.No.2/2025 is rejected. Consequently, the second appeal is dismissed. 8. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed. Sd/- (H.P.SANDESH) JUDGE SN