PRAVEEN CHANDRASHEKHAR GANIGER Vs. ADIVEPPA SANGAPPA

JUDGEMENT

(1.) This appeal is filed challenging the order dated 29.07.2009 dismissing I.A. Nos. 1 & 2 and consequently, the petition filed under Order X, Rule 9 Of the Civil Procedure Code for setting aside order of dismissal of the appeal for non-prosecution also came to be dismissed. The appellant and one Girimallappa and Shivaputrappa filed O.S. No. 186/1992 claiming rights in respect of a well which, according to them, situate in the land bearing Sy. Nos. 413/1 and 413/2 of Ainapur for declaration and injunction before the Civil Judge (Sr. Dn.), Athani. The defendant in the said suit had filed O.S. No. 36/1986 claiming that they are the absolute owners of Sy. No. 413/1 and the well exclusively falls within the said land and therefore, they are the absolute owners. Both the suits were clubbed and common evidence was recorded. O.S. No. 36/1986 was decreed and O.S. No. 186/1992 was dismissed on 19.06.2000. The appellant herein preferred an appeal before the Principal District Judge, Belgaum, in R.A. No. 44/2000. However, on 12.12.2005, this appeal came to be transferred to the Fast Track Court-I, Chikodi. The said appeal came to be dismissed on 09.06.2006 for non-prosecution. In the meanwhile, the respondents herein obtained a decree in O.S. No. 36/1986, filed execution petition in E.P. No. 234/2008. A warrant for delivery of possession was issued to take possession. When the bailiff went to the spot along with the decree holder, the appellant came to know about the dismissal of his appeal. Thereafter, immediately he filed application for restoration of the appeal contending that he had no notice of the transfer of the case from Belgaum to Chikodi and his Counsel did not inform him about such transfer and, therefore, he was not present when the appeal was called on for hearing. The said application was opposed. The learned Judge was of the view that when possession was taken in presence of panchas and when no reasons are forthcoming as to why Counsel for the appellant had not informed about the proceedings, he did not find any justification to set aside the order of dismissal passed on 09.06.2006. Moreover, the said application for restoration was filed after 2 years 9 months. Therefore, he dismissed the application for condonation of delay in filing the miscellaneous application and also application filed seeking stay of further proceedings in execution case. Aggrieved by the said order, the present miscellaneous first appeal is filed. (sic)

(2.) I have heard the learned Counsel for both the parties. From the aforesaid material on record, it is clear that after the appeal was transferred from the Court of Principal District Judge, Belgaum, to the Fast Track Court-I, Chikodi, the factum of transfer was not informed to the appellant. Therefore, the appellant was not present. He came to know about the dismissal of the regular appeal only when the bailiff went to the place with delivery warrant. It is strange that the suit, which was filed by the respondent herein, is a suit for declaration that they are the absolute owners of Sy. No. 413/1 and the disputed well is situated within the said property and therefore, they are the absolute owners of the well also, it is their specific case that both the land and well is in their possession. Their suit came to be decreed. There is nothing to be executed. Strangely, execution petition is filed, warrant is issued and the learned Judge in the impugned order records a finding that the delivery warrant issued for delivery of possession is executed and the respondents have taken possession of Sy. No. 413/1 with the well in the presence of panchas. In the facts of this case, these proceedings, the order passed, the alleged possession taken do not stand to reason. There is something fishy about all these things. Unfortunately, the learned Judge did not apply his mind. Looking to the decree and looking into the execution proceedings, he has casually dealt with the entire matter and dismissed both the applications. When the appellant has preferred a connected appeal before this Court against the decree in favour of the respondents and prosecuting the matter in this Court and the judgment rendered is by common judgment after recording common evidence, the miscellaneous petition and the application filed for condonation of delay has been very casually dealt with. Justice has suffered. Therefore, a case for interference is made out. The impugned order is liable to be set aside. Therefore, I pass the following: