N.T. Mallikar junappa, Since Dead by LRs. (Thippamma and Others) vs K.M.Thippeswaray, Since Dead by L.Rs. (K.T. Bhagyamma and Others)

K.N. Keshavanarayana

There has been a delay of 2054 days in filing this appeal. The appellants have sought for condonation of delay. The appellants are the legal representatives of original defendant in the trial Court. The respondents are the legal representatives of original plaintiff. The original plaintiff filed the suit in O.S. No. 1087/94 before the Court of Civil Judge (Jr. Dn.), Challakere for the relief of declaration of his title and for recovery of possession of the suit schedule property. The subject matter of the suit is house bearing Kaneshmari and assessment No.495/480 situated at. Nayakanahatti village of Challakere Taluk. The trial Court by its judgment and decree dated 8.3.2002 decreed the suit, declared the respondent / plaintiffs as owner of the suit schedule property and directed the legal representative of the defendant to vacate and hand over the vacant possession of the suit schedule property to the plaintiff. Aggrieved by the said judgment and decree, the appellants filed appeal in R.A.No.298/2002 before the Civil Judge (Sr. Dn. J., Challakee, said appeal came to be disposed of by judgment and order dated 16.5.2005 allowing the appeal and setting aside the judgment and decree passed by the trial Court and consequently dismissing the suit of the plaintiff. After 61/2 years, the present, appeal is filed by the appellants on the ground that though the Lower Appellate Court has allowed the appeal and set aside the judgment and decree of the trial Court, consequently dismissed the suit, the findings recorded by the Lower Appellate Court on point No. 1 is against their interest since the Lower Appellate Court while answering point No. l has held that the respondents / plaintiffs have proved their title to the suit schedule property. Thus this appeal is directed against the finding of the Lower Appellate Court on point No.1.

At this stage, it is necessary to note that against; the judgment and order passed by the Lower Appellate Court setting aside the judgment and decree passed by the Lower Appellate Court and dismissing the suit, the respondents / plaintiffs filed appeal before this Court in RSA. No. 1822/2005 and the said appeal has been disposed of on 5.9.2011 allowing the said appeal and restoring the judgment of the trial Court, it is only after the disposal of the second appeal, the present appeal is filed by the appellants. According to the appellants they were not aware of the pendency of appeal in RSA. No. 1822/2005 since they were placed exparte in that appeal and on coming to know about disposal of RSA. No. 1822/2005, they have filed R.P.No.467/11 and the said Review Petition is still pending, therefore, the learned counsel for the appellants sought, to tag on this appeal to R.P.No.467/11.

I find no substance in this submission nor I find any ground to tag this appeal to R.P.No.467/11. Admittedly, notice of appeal in RSA. No. 1822/2005 was issued to the appellant herein. The judgment of the Lower Appellate Court was passed in June 2005. Therefore, it is not open to the appellant to contend that they were not aware of the contents of the judgment of the Lower Appellate Court. If they had not appeared in RSA. No. 1022/2005 they alone to be blamed for such lapses. In any case R.P.No.467/11 is said to be pending, therefore, it is open to the appellants to pursue the said Review Petition.

Having regard to the facts and circumstances of the ease, the inordinate delay in filing this appeal has not been explained satisfactorily. The court is not satisfied with the cause shown in the application. The appellants who were in deep slumber appear to have woken up after 7 years that too after the disposal of RSA. No. 1822/2005. The present appeal appears to be aimed at overcoming the judgment in RSA. 1822/2005. In this view of the matter, I find no ground even to direct notice of the application to the respondents. In this view of the matter, IA.1/2011 is dismissed. Consequently, the appeal is also dismissed. It is open to the appellants to pursue their remedy in R.P.No.467/11, which is said to have been filed by them.