RAMESH B. NYAMAGOWDAR AND ORS. Vs. HOSAMANI

JUDGEMENT

(1.) Legal representatives of deceased defendant Shobha Nyamagowdar have filed this appeal challenging the judgment and decree dated 01.08.2018 passed in O.S. No. 5031/1999 by XXXI Additional City Civil and Sessions Judge, Bengaluru, whereunder the suit filed by the respondent/plaintiff for recovery of money has been decreed.

(2.) The parties will be referred as per their rankings in the trial Court.

(3.) Case of the plaintiff in brief is as under: During middle of May 1996 the defendant approached the plaintiff and sought for financial assistance to the tune of Rs.3.00 lakhs undertaking to repay the same with interest @ 24% p.a. The defendant further represented to the plaintiff that she had equal right in the family property situated at Shirur village, Bagalkot taluk and that she had also requested to partition the said lands and to give her, her legitimate share so that she can deal with the same as her own. The plaintiff had lent the said amount to the defendant in the month of July 1996. On receipt of the said amount the defendant had executed a receipt-cum-undertaking on 03.07.1996 promising to refund the amount within one year. In the said document the defendant had further recited that she had requested her father to partition the joint family properties measuring 19 acres 34 guntas comprised in survey Nos. 843/2, 848/2 and 70/2 of Shirur village, Bagalkot taluk and that she would dispose of the said property that may be allotted to her share and repay the amount to the plaintiff. Subsequently, defendant had not come forward to make payment. Therefore, plaintiff filed suit for recovery of the amount with interest. The suit of the plaintiff, initially, came to be decreed exparte by judgment dated 16.01.2003. The plaintiff filed execution petition No. 1172/2008 for executing the said decree passed in O.S. No. 5031/1999 against the legal representatives of defendant - Shobha Nyamagowdar who are the appellants herein. The legal representatives of defendant had filed Misc. Application No. 243/2009 for setting aside the ex-parte judgment and decree passed in O.S. No. 5031/1999 and the same came to be allowed by order dated 03.04.2012 and the suit came to be restored. The present appellants who were brought on record as the legal representatives of the deceased defendant filed written statement taking up the following contentions.