NINGEGOWDA Vs. KENGAMMA

JUDGEMENT

(1.) This appeal under Order XLIII Rule 1 (c) read with Sec. 151 of the Code of Civil Procedure, 1908 is filed by the petitioners in Misc.No.5014/2018 challenging the order dtd. 23/4/2019 passed by the III Additional District and Sessions Judge, Mandya (Sitting at Srirangapattana) on I.A.No.1 filed by appellant No.2 herein under Sec. 5 of the Limitation Act whereby the trial Court has rejected the said I.A.No.1 and consequently, the miscellaneous petition filed by the petitioners under Order IX Rule 9 of CPC is also dismissed as barred by limitation.

(2.) For the sake of the convenience, the parties are referred to as per their ranking before the Trial Court.

(3.) The respondent Nos.1 and 2 have filed a suit in O.S.No.49/2007 for declaration, possession and permanent injunction before the Civil Judge (Senior Division) and JMFC at K.R.Pete (hereinafter referred to as 'trial Court'). The trial Court by judgment and decree dtd. 26/6/2013 has decreed the suit in favour of respondent Nos.1 and 2. Being aggrieved by the same, the appellants have filed RA No.5019/2014 before the III Additional District and Sessions Judge, Mandy, Sitting at Srirangapattana (hereinafter referred to as 'First Appellate Court') challenging the judgment and decree passed in O.S.No.49/2007. Thereafter, the First Appellate Court by its order dtd. 16/7/2014 has allowed RA No.5019/2014 and the said suit was remitted back to the trial Court for fresh disposal. After remand of the matter, the trial Court again decreed the suit by order dtd. 4/6/2016 in favour of respondent Nos.1 and 2. Being aggrieved by the same, the appellants have filed RA No.5023/2016 before the First Appellate Court. Since the appellants have not represented before the Court even after giving sufficient opportunity, RA No.5023/2016 came to be dismissed for default on 13/4/2018. Being aggrieved by the same, the appellants have filed Misc.No.5014/2018 under Order IX Rule 9 of CPC and also filed I.A.No.1 under Sec. 5 of the Limitation Act for condonation of delay of 122 days in filing the miscellaneous petition. Since they have not made out grounds to condone the delay and they have not explained the reasons for delay properly, the trial Court has rejected I.A.No.1 filed for condonation of delay, consequently, the miscellaneous petition was also came to be dismissed by order dtd. 23/4/2019. Being aggrieved by the same, the appellants are before this Court in this appeal.