BASAVARAJ HEMAKESARI Vs. VEERABHADRAYYA SWAMY AND OTHERS

JUDGEMENT

(1.) HEARD learned counsel for the parties. By this application, the applicant has prayed for condoning 761 days delay caused in filing the appeal. The applicant is original defendant No. 9. Despite service, in the suit, he remained absent and allowed the suit to be decreed ex -parte. It is in this back ground, we have perused the cause shown by him seeking condonation of delay. The relevant paragraph in the affidavit reads thus: It is submitted that the above appeal is filed against the judgment and decree in OS No. 29/2011 dated 20.05.2010 passed by the Hon'ble Civil Judge Sr. Dn. Gangavati thereby allowing the suit of the plaintiff further I submits that I am the innocent purchaser from one Mr. Nagayya who is the absolute owner of the suit property bearing No. 11/3/P3 to the extent of 2 Acres 22 guntas and the sale deed was registered before the competent authority and I had paid the entire amount while execution of the sale deed and further the plaintiff is very well aware of this fact so behind back of me the respondent No. 1 and 2 had colluded and filed a suit to defeat my rights and further I states that the defendant No. 1/respondent No. 2 had given an assurance that the suit may likely to be compromised and my share will be excluded and all the basis of the said assurance I did not appear before the courts below and the Hon'ble court had passed an ex -parte order against me without looking into the material evidence of the record and allowed the suit of the plaintiff further I states that after the decree I had approached Mr. Nagayya who is the seller of the property and he informed me regarding the challenging of the judgment decree before the Hon'ble High Court of Karnataka in RFA 3032/2011 and subsequently I came to know that it was withdrawn by the present respondent No. 2 and I am not aware of all the above facts, and later on when I came to know that the plaintiff had filed an final decree proceedings and in the said final decree proceedings he filed an application for appointment of commissioner and that juncture I came to know that all the above all these proceedings were taken and further I immediately approached my counsel before the courts below and he advised to prefer an appeal before this court and subsequently I obtained all the certified copies of the same and filed the present appeal. And further there is a delay in filing the above appeal and the delay is not intentionally but with a bonafide reasons so if the delay is not condone I will be put into great irreparable loss per contra if the delay is condone there is no hardship nor injustice causes to other side.

(2.) IN our opinion, the cause shown in the above paragraph is not sufficient for seeking condonation of delay. The only ground mentioned by the applicant is that, he was assured by his vendor i.e., defendant No. 2 that the suit is likely to compromise and the property sold to him will be taken care of. No further explanation is forthcoming for seeking condonation of delay. The decree was passed more than two years ago. Final decree proceedings are in progress. Members of the family cannot be deprived of the fruits of the decree for partition. It is always open to the applicant -appellant, in the course of the execution, seek allotment of the property purchased by him to the share of his vendor. In the circumstances, the application is rejected. Consequently appeal also stands disposed of as barred by limitation. The Executing Court shall proceed to execute the decree on merits in accordance with law. I.A. No. 2/2013, also stands disposed of as infructuous.