SARASWATI AND ORS. Vs. NEELAWWA AND ORS.

JUDGEMENT

(1.) Petitioner in this revision petition is challenging the order dated 6th April, 2013 passed by the III Additional District Judge, Bijapur made in Civil Misc. No. 27/2012, wherein the application filed by the petitioners under Sec. 5 of the Limitation Act for condonation of delay of 2 years 10 days in filing civil miscellaneous petition to recall the order dated 17 -03 -2008.

(2.) It is the case of the petitioners that, one Sangamma who is the first respondent in the Miscellaneous petition filed O.S. No. 98/2003 seeking for partition and separate possession of the suit schedule property. In the plaint, it was contended that the suit schedule property is the ancestral property and the plaintiff is entitled for her share in the said property. After trial, that suit was decreed on 17th March 2008 declaring that the plaintiff who is the first respondent in the Miscellaneous petition is entitled for partition and separate possession of her 1/6th share in the suit schedule property by metes and bounds. It was further ordered that the plaintiff is also entitled for mesne profits from the date of suit. The defendants 3 to 5 in the suit, being aggrieved by the judgment and decree made in O.S. No. 98/2003 filed R.A. No. 63/2008 on the file of the Principal District Judge, Bijapur. During the pendency of the said regular appeal, the appellants filed a memo dated 31 -3 -2010 stating that due to the intervention of the elders, the first respondent i.e. the plaintiff in O.S. No. 98/2003 had agreed to receive Rs. 2,60,000/ - towards her 1/6th share in the suit schedule property and the said amount has been paid before the Court and the plaintiff will give up her share in favour of appellant No. 2 and also requested the Court to dismiss the appeal as settled out of Court among the parties in appeal.

(3.) On the basis of the said memo, the court recorded the same in the order sheet and permitted the appellants to withdraw the said appeal and the first respondent in Regular Appeal i.e. the plaintiff in O.S. No. 98/2003 received a sum of Rs. 2,60,000/ - towards her 1/6th share. Long thereafter, the appellants filed an application under Sec. 151 of CPC to recall the order dated 31 -03 -2010 contending that by misunderstanding, the said regular appeal has been withdrawn. They also filed one more application under Sec. 5 of the Limitation Act for condonation of delay of 2 years 10 days in filing the application for recalling the order dated 31 -3 -2010 made in R.ANo. 63/2008.