- 1 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 4441 OF 2024 (CPC) BETWEEN: HAMSA, AGED ABOUT 48 YEARS, S/O IMUTTI, RESIDING AT SUGODI, HARADALLI MANDALLI VILLAGE, POST BIDKALAKATTE, KUNDAPURA TALUK, KUNDAPURA TALUK, UDUPI DISTRICT-576201. APPELLANT (BY SRI. HARSHA KUMAR GOWDA H.R.,ADVOCATE) AND: CHANDRA ACHARY AGED ABOUT 51 YEARS S/O NARAYANA ACHARY, RESIDING AT KADINAKONDA KANDAVARA VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576201. RESPONDENT (BY MS. PRASANNA. K., ADVOCATE FOR SRI. CHANDRANATH ARIGA K.,ADVOCATE) Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED 06.04.2024 PASSED IN MISC.NO.5/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC AND ETC,. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR ORAL JUDGMENT The present appeal is preferred by the appellant, who was petitioner in Misc.No.5/2023, challenging the order dated 06.04.2024 passed in Misc.No.5/2023 by the Senior Civil Judge, Kundapura and set aside the judgment dated 12.07.2022 passed in O.S.No.68/2020 by the Senior Civil Judge, Kundapura. 2. Brief facts of the case are as under: The respondent, who is the plaintiff before the trial Court, instituted a suit for recovery of money for a sum of ₹24,60,000/-. During the pendency of the suit, the appellant, who was the defendant, was placed ex parte by order dated 05.11.2020. Consequently, the suit came to - 3 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 be decreed by judgment and decree dated 12.07.2022, directing the appellant-defendant to pay a sum of ₹24,60,000/- along with current and future interest at the rate of 6% per annum from the date of the suit until realisation. 2.1 Pursuant thereto, the respondent-plaintiff initiated execution proceedings in Execution Petition No.47/2022 for recovery of the decretal amount. 2.2 It is the case of the appellant-defendant that he was unaware of the judgment and decree until an adjudication order came to be passed in the execution proceedings. According to him, he came to know of the judgment and decree only upon the issuance of the sale proclamation in respect of the schedule property on 03.07.2023. Thereafter, learned counsel for appellant submits that the appellant filed W.P.No.15954/2023 before this Court on 24.07.2023. - 4 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 3. It is contended by the learned counsel for the appellant that he filed petition before this Court in WP.No.15954/2023 on 24.07.2023 to quash the order dated 03.07.2023 of issuance of proclamation in the execution petition. The said writ petition filed by the appellant came to be disposed of vide order dated 15.11.2023, whereby this Court stayed the further proceedings in the execution petition till the disposal of the Misc.No.5/2023, which was initiated thereafter before the learned Senior Civil Judge at Kundapura. It is during the pendency of writ petition, the miscellaneous petition came to be filed by the appellant herein to set aside the ex-patre order in the OS.No.68/2020, the same came to be dismissed, upon service of notice and appearance of the respondent / plaintiff on the ground of delay, against which the present appeal is filed. 4. It is a vehement contention of learned counsel for the appellant that the impugned order passed by the learned Senior Civil Judge in dismissing the miscellaneous petition is illegal, arbitrary and erroneous and the same deserves to be set aside and reversed. - 5 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 5. Learned counsel further contends that the impugned judgment of the learned Trial Court in OS.No.68/2020 was an ex-parte judgment and the said the suit notice was not served to the appellant herein and no documents were produced by the respondent before the Miscellaneous Court or this Court to show that the notice has been duly served on the appellant who was the defendant in the Trial Court. 6. Learned counsel further contends that in view of no notice being served to the appellant, the judgment and decree passed in OS.No.68/2020 was not within his knowledge and he had no opportunity to appear before the Court to defend his case or to contest the matter. Therefore, he contends that there was no proper service of notice / summons in the original suit proceedings for which he filed miscellaneous petition to set aside the ex-parte judgment and decree and to provide an opportunity to contest the matter and defend the suit. 7. It is further contented by learned counsel that it is only after issuance of the attachment order, the appellant came to know regarding passing of the ex-parte judgment and decree - 6 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 in the original suit. The appellant explained all these facts and circumstances in the miscellaneous petition, so also in the application filed for condonation of delay in filing the said miscellaneous petition, whereas the impugned order is passed without taking into consideration all these aspects. Therefore, he contends that, he has a very good case on merits and he deserves an opportunity to be provided to contest the matter and defend his case as no opportunity was given by merely passing an ex-parte judgment and decree. Hence, the impugned order deserves to be set aside. Consequently, opportunity be given by fixing any time limit for disposal of the suit. On these grounds, he seeks to allow the appeal. 8. Per contra, learned counsel appearing to the respondent who was the plaintiff before the Trial Court, vehemently contends that there is no illegality, error or perversity in the impugned order calling for interference at the hands of this Court. Learned counsel further contends that, on 16.09.2020 a suit came to be filed against the appellant who was the defendant in OS.No.68/2020 for recovery of Rs.24,60,000/- before the learned Senior Civil Judge, - 7 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 Kundapura. Soon after, on 18.09.2020 an ex-parte ad-interim order of temporary injunction was passed directing the defendant not to alienate or create any charge over the suit schedule property. She further contends that on 26.09.2020 suit summons and the order of the temporary injunction was served on the son of the defendant through the bailiff of the Court. In this regard relevant document has been placed before the Court as Ex.P4. Thereafter, in view of non appearance of the appellant / defendant, he was placed ex-parte on 05.11.2020. Thereafter, upon adducing evidence the suit OS.No.68/2020 came to be decreed on 12.07.2022. 9. Learned counsel further contends that, in pursuance to the judgment and decree Ex.C.No.47/2022 was filed for recovery of the amount and an order of attachment of the immoveable property was passed on 30.03.2023. She further contends that, the judgment debtor i.e., the appellant before the Trial Court filed vakalath before the Executing Court on 20.04.2023. Pursuant there to on 03.07.2023 an order of proclamation was issued by the Executing Court. Learned counsel contends that the appellant filed WP.No.15954/2023 - 8 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 challenging the said order of proclamation and an interim order was granted in the said writ petition soon after. Learned counsel further contends that, it is only thereafter, on 07.10.2023 the Misc.No.5/2023 was filed by the appellant to set aside the judgment and decree passed in the original suit and no application for condonation of delay was filed along with the miscellaneous petition. On 31.10.2023, IA.No.III was filed for condoning the delay of 422 days in filing the miscellaneous petition. The Writ Court disposed of the petition filed by appellant on 15.11.2023. 10. Learned counsel further contends that the appellant was examined as PW.1 in the miscellaneous petition on 07.03.2024 and thereafter, the impugned order was passed by the Court holding that no case was made out to condone the delay. 11. Heard learned counsel Sri. Harsha Kumar Gowda H.R, appearing for the appellant and learned counsel Ms. Prasanna. K, appearing for learned counsel Sri. Chandranath Ariga. K, appearing for the respondent. - 9 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 12. The point that arises for consideration in this appeal is 'whether the appellant has made out a valid case to set aside the impugned order which came to be dismissed on the ground of delay?' 13. Learned counsel for the appellant has relied upon the judgment of the Hon'ble Apex Court in the case Collector, Land Acquisition, Anantnag and another V.s Mst. Katiji And Others1. Apparently, there is no dispute to the fact that the respondent filed suit against the defendant for recovery of amount. The suit came to be decreed as ex-parte for non appearance of the appellant. No doubt, it is the vehement contention of learned counsel for the appellant that, no proper service of notice was served on the appellant. But the same is disputed by learned counsel for the respondent on the ground that, notices were served both on the application for ex-parte ad-interim temporary injunction and on the suit summons. Even, if that was not served, it is to be seen as to whether the appellant has shown diligence and made out a valid case for having exhibited careful approach even after coming to know of the ex-parte judgment and decree. 1 AIR 1987 SC 1353 - 10 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 14. Upon careful perusal of the facts of the case and the dates that are stated herein above, apparently it is seen that it is a case of the appellant that, he came to know of the ex-parte judgment and decree only when the proclamation was issued on 03.07.2023 and only thereafter, he filed the writ petition challenging the said order of proclamation in WP.No.15954/2023, where he was able to secure an interim order and then filed the miscellaneous petition to set aside the ex-parte judgment and decree. But on perusing the records and even admittedly, the appellant herein had appeared before the Executing Court and filed vakalath on 20.04.2023 itself. Therefore, when he had the knowledge of the judgment and decree nothing prevented the appellant from filing the miscellaneous petition immediately after filing of vakalath in Ex.C.No.47/2022 filed by the respondent. But apparently, no such miscellaneous petition is filed soon thereafter, either within a month's time which any normal prudent person will do. What the appellant does is challenges the order of proclamation keeps quiet for 3 months. Once he secures an order in the Writ Court of stay of the proclamation issued by the Executing Court, he does not even file the miscellaneous petition - 11 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 immediately thereafter. It is only on 07.10.2023, a miscellaneous petition is filed by the appellant to set aside the judgment and decree passed ex-parte against him. So therefore, from the month of April, 2023 when he had the knowledge accepting the argument of the appellant by filing the vakalath in the execution petition, the miscellaneous petition is filed after 6 months. 15. It is seen that even in the miscellaneous petition no proper reasons are explained for condonation of delay. No cogent material is also produced as to why there is a delay of 6 months from the date of knowledge. Assuming the summons were not served in the original suit, that itself clearly indicates that there is absolute carelessness and negligence on the part of the appellant not preferring the miscellaneous petition to set aside the ex-parte judgment and decree within the time prescribed or reasonable time. Therefore, I do not agree with the argument of learned counsel for the appellant with regard to the judgment of the Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and another (supra), being applicable to the facts of the present case. - 12 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 16. The Hon'ble Apex Court in the latest judgment in the case of Pathapati Subba Reddy (died) by legal representatives and others V.s Special Deputy Collector (LA)2, has clearly stated that in the age of technology the judgment earlier cited with regard to taking pedantic approach and leniency cannot be accepted unless proper materials are placed before the Court to condone the delay, as it is for the appellant to show good cause, cogent reason sufficient to the satisfaction of this Court, which my opinion has not been explained in this case. 17. It is relevant to see in the present case that, it is nevertheless, mandatory to see that sufficient cause shown for condonation of delay which is a conditional precedent for exercising the discretionary power to condone the delay. The Hon'ble Apex Court, in the case of Pathapati Subba Reddy (supra), has stated in paragraph No.18 as follows: "18. In Collector, Land Acquisition, Anantnag and another V.s Mst. Katiji and others reported in AIR 1987 SC 1353, this Court in advocating the liberal approach in condoning the delay for “sufficient cause” held that ordinarily a litigant does not stand to benefit by lodging an appeal late; it is not necessary to explain every day's delay in filing the appeal; and since sometimes refusal to 2 (2024) 12 SCC 336 - 13 - HC-KAR NC: 2026:KHC:30946 MFA No. 4441 of 2024 condone delay may result in throwing out a meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon technical considerations and if the delay is not deliberate, it ought to be condoned. Notwithstanding the above, howsoever, liberal approach is adopted in condoning the delay, existence of “sufficient cause” for not filing the appeal in time, is a condition precedent for exercising the discretionary power to condone the delay. The phrases “liberal approach”, “justice-oriented approach” and cause for the advancement of “substantial justice” cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and reopened by taking aid of Section 5 of the Limitation Act." 18. Under the circumstances, I am of the opinion that no bona fide reasons are made out to condone the delay. No sufficient cause is shown and also no satisfactory reasons are forthcoming. Under the circumstances, I do not find any good ground or cogent reason to interfere with the impugned order passed by the learned Senior Civil Judge, Kundapura. Accordingly, I pass the following: ORDER The appeal is dismissed. Sd/- (PRADEEP SINGH YERUR) JUDGE CPN,PNV - List No.: 1 Sl No.: 38