KOTEMARIAMMA DEVALAYA Vs. K.B. HARISH

JUDGEMENT

(1.) The defendants in O.S. No. 161/2008 on the file of the Principal Civil Judge (Jr. Dn.), Madikeri are before this Court challenging the judgment and decree in R.A. No. 13/2009 dated 16.3.2011 on the file of the Civil Judge (Sr. Dn.), Madikeri. The respondent is the plaintiff in the suit. The suit filed by the plaintiff for cancellation of the gift deed dated 28.12.2007 was dismissed by the trial Court. The first Appellate Court has reversed the said judgment and decree and has decreed the suit.

(2.) There is a delay of 258 days in filing the appeal. Therefore, the appellants have filed an application-I.A. No. 1/2012 seeking condonation of delay in filing the appeal. The second appellant has filed an affidavit in support of the application deposing that they had not received any summons from the Court and that the appellants were not aware of the case filed by the plaintiff. On 17.4.2011, he came to know through his friend that the respondent has obtained a decree from the Court against Kotemariamma Devalaya. Immediately, he contacted his Advocate and on verification, he came to know about the judgment passed by the first Appellate Court. Next day, he applied for the certified copies of the judgment and decree. Thereafter, he decided to file the appeal.

(3.) The respondent has filed objections to the application contending that appellant No. 2, who is respondent No. 2 before the first Appellate Court has been served with the notice apart from the other respondents. On 13.4.2009, a learned Advocate has undertaken to file vakalath on their behalf. However, the appeal was adjourned to 27.5.2009. They were placed ex-parte on that day. After several adjournments, the first Appellate Court heard the arguments and delivered the judgment on 16.3.2011. They have not disclosed the name of the friend, who had informed them about passing of the judgment. They have not come to this Court with clean hands.