UMADEVI W/O. LATE S.V. NAGARAJ AND SANTOSH S.N. S/O. LATE S.V. NATARAJ (SINCE MINOR REPRESENTED, BY HIS MOTHER SMT UMADEVI W/O. LATE S.V. NAGARAJ) Vs. SMT. DHAKSHANAMMA W/O SHIVARUDRAPPA MALVI, AS SHE IS INSANE REP. BY HER NEXT FRIEND HUSBAND SR

JUDGEMENT

(1.) RESPONDENT No. 1 tiled O.S. No. 93/1998 against Respondent Nos. 2 to 6 and Sri S.V. Nagaraj, in the Court of Civil Judge (Sr. Dn.) at Davanagere, to pass judgment and decree of partition and separate possession of 1/4th share in the plaint 'A' and 'B' schedule properties and for mesne profits and consequential reliefs, Sri S.V. Nagaraj S/o. Sollapurada Veerabhadrappa was Defendant No. 1 in the suit. Defendant Nos. 1 to 5 were placed ex -parte. Defendant No. 6 having appeared through her learned advocate admitted the suit claim and submitted that, she is ready and willing to, pay the Court, fee and sought separate share for her. Issues having been framed, after trial, the suit was decreed on 06.03.2003, entitling the Plaintiff and the 6th Defendant for 1/8th share each, in the plaint schedule properties. A preliminary decree was ordered to be drawn. F.D.P. No. 54/2004 was filed thereafter.

(2.) SRI S.V. Nagaraj, Defendant No. 1 filed a petition under Order 3 Rule 13 of Code of Civil Procedure to set aside the judgment and decree dated 06.03.2003 passed in O.S. No. 93/1998 by the learned 1st Addl. Civil Judge (Sr. Dn.). Davanagere. Petition having filed beyond time prescribed period of limitation, I.A. No. 1 was filed seeking condonation delay. Respondent No. 6 filed statement of objections and opposed the petition and also I.A. No. 1. Petitioner Sri S.V. Nagaraj having died, his wife and children prosecuted the petition by coming on record as legal representatives of the deceased Petitioner. Wife of Late S.V. Nagaraj, Smt Uma Devi deposed as P.W. 1. Exs.P. 1 to P. 9 were marked.

(3.) SRI . B.M. Siddappa, learned advocate appearing for the Appellants contended that the Court below has committed an error and illegality in passing the impugned order. Learned Counsel submitted that, on behalf of the Respondents, no rebuttal evidence was adduced and the evidence of P.W. 1 being credible, the delay ought to have been condoned and petition allowed, Learned Counsel submitted that the Court below has failed to exercise the jurisdiction vested in it and the dismissal of the petition being irrational and illegal, interference in the matter is called for.