- 1 - HC-KAR NC: 2026:KHC:11227 RFA No. 2168 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 2168 OF 2025 (PAR) BETWEEN: SRI. RAMALINGEGOWDA S/O. LATE KEMPEGOWDA, AGED ABOUT 63 YEARS, R/A. PICHANAKERE VILLAGE, KOTTAGALU POST, HAROHALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA. …APPELLANT (BY SRI. N.N. RAJ URS, ADVOCATE) AND: 1. SMT. PARVATHAMMA W/O. LATE KEMPE GOWDA, AGED ABOUT 83 YEARS, 2. SMT. KAMALAMMA D/O. LATE KEMPE GOWDA, AGED ABOUT 68 YEARS, 3. SRI. APPAJIGOWDA S/O. LATE KEMPE GOWDA, AGED ABOUT 66 YEARS, 4. SMT. SHIVALINGAMMA D/O. LATE KEMPE GOWDA, AGED ABOUT 60 YEARS, Digitally signed by SHARADAVANI B Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:11227 RFA No. 2168 of 2025 5. SMT. PADMA W/O. LATE SIDDAIAH, AGED ABOUT 54 YEARS, (ALL ARE R/A. PICHCHANAKERE VILLAGE, KOTTAGALU POST, HAROHALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT) …RESPONDENTS THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.12.2019 PASSED IN OS NO.94/2018 ON THE FILE OF C/C SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA., DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT Having heard the learned counsels appearing for the parties at considerable length, this Court indicated to the appellant that in an appeal preferred under Section 96(2) of the Code of Civil Procedure, 1908 (for short, ‘CPC’), the ground that sufficient opportunity was not afforded resulting in an ex parte decree cannot be gone into. It is well settled that against an ex parte decree, the defendant - 3 - HC-KAR NC: 2026:KHC:11227 RFA No. 2168 of 2025 has two distinct and independent remedies. Firstly, he may invoke the provisions of Order IX Rule 13 of the CPC seeking to set aside the ex parte decree on establishing sufficient cause for his non-appearance. Secondly, he may prefer a regular appeal under Section 96(2) of the CPC and assail the decree on merits, contending that even in the absence of a written statement or defence, the plaintiff has failed to establish his case and is liable to be non- suited. However, the question of want of opportunity or sufficient cause for non-appearance cannot be adjudicated in a Section 96(2) appeal. 2. At this stage, learned counsel for the appellant has filed a memo seeking permission of this Court to withdraw the present appeal with liberty to avail the remedy available under Order IX Rule 13 of the CPC. 3. The memo is taken on record. 4. In view of the same, the appeal stands dismissed as withdrawn. It is, however, made clear that such - 4 - HC-KAR NC: 2026:KHC:11227 RFA No. 2168 of 2025 withdrawal shall not operate as a bar or impediment for the appellant in pursuing his remedy under Order IX Rule 13 of the CPC, in accordance with law. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE HDK List No.: 1 Sl No.: 12