- 1 - HC-KAR NC: 2026:KHC:5212 MSA No. 50 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE MISCELLANEOUS SECOND APPEAL NO. 50 OF 2025 (RO) BETWEEN: SRI. H R DAYANANDA, S/O LATE H RAJANNA, AGED ABOUT 49 YEARS, R/AT HALANURU VILLAGE, KASABA HOBLI, TUMAKURU TALUK - 572107. …APPELLANT (BY SRI V B SIDDARAMAIAH.,ADVOCATE) AND: 1. NIRMALA, D/O ALTE CHIKKAMALLAIAH AGED ABOUT 25 YEARS, R/AT MALLASANDRA PALYA, KASABA HOBLI, TUMAKURU TALUK - 572017. 2. STM PREMA, W/O ALTE CHIKKAMALLAIH, AGED ABOUT 49 YEARS, 3. SRI SIDDALINGAIAH, S/O ALTE SIDDAMALLAIAH, AGED ABOUT 43 YEARS, RESPONDENT NO.2 AND 3 ARE R/AT MALLASANDRA PALYA KASBA HOBLI, TUMAKURU TALK 572107. 4. SMT SOWBHABYA M S, D/O SIDDAMALLAIAH, W/O RAVEESH, AGED ABOUT 43 YEARS, Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:5212 MSA No. 50 of 2025 R/AT ANKAPURA VILLAGE, NITTUR HOBLI, GUBBI TALUK - 572223, TUMAKURU DISTRICT. …RESPONDENTS (BY SRI PRAMOD R, ADVOCATE FOR R1, SRI PARVAIAH, ADVOCATE FOR R2 AND R3, SRI MAHAJAN B K, ADVOCATE FOR R4) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 12.12.2024 PASSED IN RA NO.249/2020 ON THE FILE OF VII ADDITIONAL DISTRICT JUDGE, TUMAKURU., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 31.03.2010 PASSED IN OS NO.98/2007 ON THE FILE OF ADDITIONAL CIVIL JUDGE( SR.DVN) AND CJM, TUMKUR. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT Heard the learned counsel appearing for the appellant and the respondents. 2. This Miscellaneous Second Appeal is directed against the decree remitting the matter to the Trial Court for fresh consideration. 3. The suit filed before the Trial Court is one for specific performance of the contract. Defendant No.1 is the father. Defendants No.2 and 3 are the children of defendant No.1. - 3 - HC-KAR NC: 2026:KHC:5212 MSA No. 50 of 2025 Defendant No.2 was a minor when the suit was filed and represented by defendant No.1. 4. Before the Trial Court, minor defendant No.2 is said to be represented by her father-defendant No.1. Defendants No.1 and 3 engaged an Advocate. However, did not file a written statement. The suit is decreed ex-parte, accepting the plaintiff’s case. The suit was decreed on 31.03.2010. 5. Defendants No.1 and 3 have not filed any appeal against the said judgment and decree. Defendant No.2, who attained majority in the year 2018, filed appeal in the year 2020. 6. First Appellate Court has condoned the delay and remitted the matter to the Trial Court on the premise that defendant No.2, the minor was not represented before the Trial Court effectively and accordingly, set-aside the entire judgment and decree. 7. Learned counsel appearing for the appellant would submit that the defendant No.2 did not explain 2 years 10 - 4 - HC-KAR NC: 2026:KHC:5212 MSA No. 50 of 2025 months delay in filing the appeal by showing the sufficient grounds to condone the delay. She appeared before the Executing Court and she was aware of the decree as well as execution petition. Because of delay of 2 years and 10 days in filing the appeal, the appeal could not have been entertained at all. 8. In the alternative, it is urged that even if the appeal is to be remanded, the decree against defendant No.1 and defendant No.3 could not have been set aside as they have not challenged the decree. 9. Learned counsel for the defendants would urge that defendant No.2 being the minor was not effectively represented and there was no contest by defendant No.1 who allegedly represented the interest of the minor. The decree being the ex-parte, or First Appellate Court is justified in remanding the matter. It is further submission that the Trial Court was under obligation to appoint a guardian, when the minor’s interest is not effectively represented by the father. - 5 - HC-KAR NC: 2026:KHC:5212 MSA No. 50 of 2025 10. The Court has considered the contentions raised at the Bar and perused the records. 11. The following point arises for consideration:- Whether First Appellate Court is justified in remitting the matter to the Trial Court by setting aside the entire judgment and decree? 12. It is to be noticed that the plaintiff has filed the suit alleging that the father/defendant No.1 agreed to sell his share and also the share of his daughter, defendant No.2 who was minor. Admittedly defendant No.2 was minor when the suit was filed. Defendant No.1/father did not contest the suit by filing the written statement, though he was representing defendant No.2, the minor. 13. The law in this regard is well settled. In case, the interest of the minor represented by the party is not effectively safeguarded by contesting the proceeding, the Court is under obligation to appoint the Guardian to safeguard the interest of the minor. - 6 - HC-KAR NC: 2026:KHC:5212 MSA No. 50 of 2025 14. Admittedly, no Guardian was appointed by the Court. 15. In addition, the Trial Court has not framed any points for consideration to consider as to whether the sale in respect of the minor's share is for the benefit of the minor. This is a serious error committed by the Trial Court. 16. However, it is also required to be noticed that defendant No.1 and defendant No.3 have not filed appeal even 10 years after the decree. Later, when the defendant No.2 filed appeal, defendants No.1 and 3 have not joined the appellant/defendant No.2. In other words, it appears that they have accepted the decree. 17. Under these circumstances, this Court is of the view that First Appellate Court should have set-aside the judgment and decree in part only against defendant No.2. Hence, the remand by setting aside entire judgment and decree is untenable. - 7 - HC-KAR NC: 2026:KHC:5212 MSA No. 50 of 2025 18. Under these circumstances, the appeal has to be allowed in part. Hence the following:- ORDER (i) Appeal is allowed in part. (ii) The part of the judgment and decree dated 12.12.2024 in R.A. No.249/2020 on the file of VII Additional District Judge, Tumakuru directing specific performance against defendant No.2 is set aside. (iii) The suit is remitted back to the Trial Court to consider the defence of defendant No.2 to the extent of share held by defendant No.2. (iv) Defendant No.2 is permitted to file written statement within 30 days from the date of appearance before the Trial Court. (v) The parties shall appear before the Trial Court on 23.02.2026 without any further notice. Thereafter, the Court shall consider the defence of defendant No.2 and consider as to whether the agreement for sale executed by defendant No.1 is for the benefit of minor and - 8 - HC-KAR NC: 2026:KHC:5212 MSA No. 50 of 2025 minor’s interest is adequately taken care of. (vi) The decree for specific performance against defendants No.1 and 3 stands confirmed to the extent of the share held by them. (vii) It is made clear that the plaintiff is at liberty to initiate final decree proceeding. (viii) It is made clear that the decree for specific performance confirmed against defendants No.1 and 3 to the extent of their respective shares shall also be treated as a decree for partition and separate possession of 2/3rd share (1/3rd share of 1st defendant and 1/3rd share of 3rd defendant) and the plaintiff is permitted to file final decree proceeding in respect of the share of defendants No.1 and 3. (ix) Only after the division of the property of defendants No.1 and 3, the plaintiff is entitled to get the sale deed executed in respect of the share of defendants No.1 and 3. (x) Till the plaintiff is put in possession of the property through the process of the Court, he shall not enter the suit property. - 9 - HC-KAR NC: 2026:KHC:5212 MSA No. 50 of 2025 (xi) Final Decree Proceeding if initiated shall continue notwithstanding the remand of the matter to the Trial Court to consider the claim of defendant No.2. (xii) It is further made clear that the Court has not expressed anything on the merits of the claim of defendant No.2. (xiii) All contentions between plaintiff and defendant No.2 are kept open to the extent of share held by defendant No.2. (xiv) There shall not be any adjudication as to whether agreement is executed or not. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS List No.: 1 Sl No.: 44