- 1 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1638 OF 2017 (PAR) BETWEEN: 1. SRI. ESHWARE GOWDA S/O LATE SRI. SANNKKEI GOWDA BY LRs SUSHELAMMA W/O ESHWAREGOWDA AGED ABOUT 56 YEARS 2. BASAVARAJU S/O ESHWAREGOWDA AGED ABOUT 40 YEARS 3. MADHUKUMAR S/O ESHWAREGOWDA AGED ABOUT 38 YEARS 4. MAHESH S/O ESHWAREGOWDA AGED ABOUT 36 YEARS ALL ARE R/O.NAGARAHALLI MARLE POST, AMBLE HOBLI CHIKKAMAGALURU TALUK AND DISTRICT-577 101. …APPELLANTS (BY SRI. ANIKETH .K.V, ADVOCATE FOR SRI. SACHIN .B.S, ADVOCATE) Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 AND: 1. SRI SOMASHEKARE GOWDA SINCE DEAD BY LRS SHIVAMMA W/O SOMASHEKAREGOWDA AGED ABOUT 61 YEARS 2. PUSHPAVATHI D/O SOMASHEKARE GOWDA W/O SHIVANNA AGED ABOUT 38 YEARS BOTH ARE R/O ADAGURU MADIHALLI HOBLI, BELUR TALUK HASSAN DISTRICT-573 216. 3. HEMAVATHI S/O SOMASHEKAREGOWDA TAILOR AGED ABOUT 29 YEARS JAKI STAGE INDUSTRIES BOMMANAHALLI VILLAGE KODICHIKKANAHALLI ROAD HONGASANDRA, BENGALURU-560068. 4. SMT. NANJAMMA W/O.NANJEGOWDA SINCE DEAD BY L.RS. CHANNEGOWDA S/O NANJEGOWDA AGED ABOUT 46 YEARS 5. PRAKASH S/O NANJEGOWDA AGED ABOUT 41 YEARS R4 AND R5 ARE R/O NAGARAHALLI MARLE POST, AMBLE HOBLI - 3 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 CHIKKAMAGALURU TALUK AND DISTRICT-577 101. 6. CHANDRAMMA D/O NANJEGOWDA W/O ASHOK AGED ABOUT 43 YEARS R/O GANJIGERE VILLAGE PURA POST, KADUR TALUK CHIKKAMAGALURU DISTRICT-577 548. 7. SRI RUDREGOWDA S/O LATE SANNAKKI GOWDA SINCE DEAD BY LRS KAVITHA S/O RUDREGOWDA W/O PRAKASH AGED ABOUT 37 YEARS R/AT NAGARAHALLI VILLAGE MARLE POST, AMBLE HOBLI CHIKKAMAGALURU TALUK-577 101. 8. VANAJAKSHI D/O RUDREGOWDA W/O NANJUNDAPPA AGED ABOUT 35 YEARS KEMPAGONDANAHALLI VILLAGE HALEBEEDU HOBLI, BELUR TALUK HASSAN DISTRICT-573 115. 9. MANJULA D/O RUDREGOWDA W/O MALLIKARJUNA AGED ABOUT 34 YEARS HOSAKOTE VILLAGE, MARLE POST AMBLE HOBLI, CHIKKAMAGALURU TALUK AND DISTRICT-577 101. 10. PAVITHRA D/O RUDREGOWDA - 4 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 W/O.YOGESH AGED ABOUT 32 YEARS KABBIGERE VILLAGE, MARLE POST AMBLE HOBLI, CHIKKAMAGALURU TALUK AND DISTRICT-577 101. 11. SRI. SHANTHEGOWDA S/O SANNEGOWDA AGED ABOUT 61 YEARS FIRST GRADE CONTRACTOR SAGANIPURA ROAD CHIKKAMAGALURU TALUK-577 101. 12. SRI. MARI GOWDA S/O NINGE GOWDA AGED ABOUT 62 YEARS NAGARAHALLI VILLAGE-572 135. 13. SRI. SANNE GOWDA S/O MASTHE GOWDA AGED ABOUT 57 YEARS KALARAHALLY OF NAGARAHALLI VILLAGE-572 135. 14. SRI. MALLE GOWDA S/O NANJE GOWDA AGED ABOUT 42 YEARS NAGARAHALLI VILLAGE-572 135. 15. SRI. HULI GOWDA S/O HULI GOWDA MAJOR NAGARAHALLI VILLAGE-572 135. …RESPONDENTS THIS RSA IS FILED U/S. 100 OF CPC., 1908 AGAINST THE ORDER DATED 17.03.2017 PASSED IN R.A.NO. 3/2016 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 20.01.2009 PASSED IN OS.NO. 28/2000 ON THE FILE OF THE ADDITIONAL CIVIL - 5 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 JUDGE (Sr.Dn.) AND JMFC., CHIKMAGALUR.TRIAL COURT PARTLY DECREED THE SUIT. APPELLATE COURT DISMISSED THE APPEAL SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Defendant No.2–Eshware Gowda in O.S.No.28/2000, who is now represented by his legal representatives, namely the wife and children, have preferred the present appeal challenging the judgment and decree passed in O.S.No.28/2000, which was confirmed by dismissing the appeal filed by the appellants in R.A No.3/2016. 2. The Office has raised objection with regard to non-arraying defendant Nos.3 to 6 as parties before the First Appellate Court and how they have been arraying as parties before this Court. 3. While considering the said office objections, this Court has also taken note of the merits of the matter as well. - 6 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 4. The suit in O.S.No.28/2000 was filed for partition and separate possession of immovable properties situated in Nagarahalli Village, Amble Hobli, Chikkamagaluru comprising of 19 items. The suit on contest came to be decreed in part granting 1/16th share to plaintiff No.1 and 5/16th share to plaintiff No.2 in item Nos.1 to 11. The suit came to be dismissed with regard to item Nos.12 to 19. 5. The plaintiffs filed an appeal in R.A.No.33/2009 against the judgment and decree dismissing the suit in respect of item Nos.12 to 19, in which admittedly defendant No.2 was a party. The said appeal came to be dismissed on merits. 6. Original defendant No.2 did file a first appeal in R.A.No.25/2009, which came to be dismissed as abated. Instead of seeking setting aside abatement by filing necessary application under Order XXII Rule 3 and 9 of the CPC, the legal representatives of defendant No.2 chose to file a separate appeal belatedly in R.A.No.3/2016. - 7 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 7. Admittedly, in the said appeal, the legal representatives of the deceased defendant No.2 did not choose to arraign defendant Nos.3, 4, 5 and 6 as parties to the appeal purportedly on the ground that they were placed ex-parte and they need not be made as parties. 8. Learned Judge in the First Appellate Court even before considering the appeal on merits and non-arraying defendant Nos.3, 4, 5 and 6 as parties to the appeal, heard the appeal on the question of condonation of delay and dismissed the application seeking condonation of delay and consequently, dismissed the appeal by order dated 17.03.2017. 9. Being aggrieved by the same, the legal representatives of the deceased defendant No.2 in O.S.No.28/2000 have preferred the present second appeal. 10. Sri.Aniketh K.V, learned counsel for the appellants reiterating the grounds urged in the appeal - 8 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 memo would contend that the approach of the First Appellate Court that the appeal dismissed on condonation of delay is incorrect as rights of the immovable properties were the subject matter of the First Appeal in R.A.No.3/2016 and thus, sought for consideration of the appeal on merits before this Court. 11. This Court did not deem it fit to issue notice of the appeal to the respondents. 12. Having heard the submissions of Sri.Aniketh K.V., learned counsel for the appellants, this Court noted that an appeal, which was filed by defendant No.2 in R.A.No.25/2009 having been dismissed as abated, the only course for the legal representatives of the defendant No.2 was to file necessary applications to restore the said appeal. 13. Instead, the legal representatives of defendant No.2 chose to file a separate appeal, which is impermissible in law. - 9 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 14. Therefore, the learned Judge, while considering the application for condonation of delay in R.A.No.3/2016, was justified in dismissing the said application as the proper remedy available to the legal representatives was to file necessary application and not to file a separate appeal seeking condonation of delay. 15. Further, the appeals filed by the appellants were also defective inasmuch as all the necessary parties were not arrayed as parties to the appeal, even though defendant Nos.3, 4, 5 and 6 were placed ex-parte. 16. Under such circumstances, those defendants were also to be arrayed as respondents, but, notice to them could have been sought to be dispensed as they were placed ex-parte before the Trial Court, more so, when the suit is one for partition and separate possession. 17. Thus, the appeal filed by the legal representatives, ignoring the fact that they were required to seek restoration of the appeal filed defendant No.2 in - 10 - HC-KAR NC: 2026:KHC:25600 RSA No. 1638 of 2017 R.A.No.25/2009 by filing necessary applications, is not maintainable in law. 18. Consequently, the dismissal of the said appeal warrants no interference, having regard to the scope of Section 100 of the Civil Procedure Code. 19. Accordingly, the following; ORDER The appeal is dismissed. SD/- (V SRISHANANDA) JUDGE NBM List No.: 2 Sl No.: 8