B S SURYNARAYANA RAO Vs. HIDAYUTHUNNISA BEGUM

JUDGEMENT

(1.) SRI. B. Sanjeevaiah S/o narasappa, had instituted O. S. 39/1958, on the file of the Munsiff at Chitradurga, against sri. Vulavaramuthuru, for judgment and decree of declaration that the suit schedule properties were purchased from Sri. Thimmegowda in the name of defendant, benami for the defendant on 4-7-1946 and the defendant is bound by the agreement to sell the suit properties to the plaintiff after the discharge of the debt by the plaintiff to the defendant. A direction was also sought to the defendant, to execute a sale deed. During the pendency of the suit B. Sanjeevaiah having passed away, his L. Rs. , have prosecuted the suit. By judgment and decree dated 23-2-1967. suit was dismissed, against which R. A. 36/1967 was filed in the Court of Civil Judge. Citradurga. The said appeal was transferred to the Court of District Judge, Chitradurga, wherein it was re-numbered as R. A. 5/1969. During the pendency of the appeal, Mysore agricultural Debtor's Relief Act, 1966 ('madr Act', for short), having come into force with effect from 18-4-1969, taking into consideration contentions raised by respondent in the appeal, appellate Court exercising the jurisdiction conferred under Section 18 (1)of the MADR Act, ordered the transfer of appeal to MADR Court, namely, Court of munsiff, Chitradurga, for necessary action. After receiving the record, case was registered and numbered as MADR No. 12285/1969 on the file of MADR Court. Case was transferred to the Court of Munsiff at Hiriyur in the year 1987 and re-numbered as MADR No. 250/1987. The proceedings in the said case has abated, in view of the repeal of the MADR act, with effect from 27-12-1984. On 11-11-1996, petitioner had filed a petition in the court of Civil Judge, Chitradurga, under order 9, Rule 9 of CPC, seeking restoration of said appeal, along with an application under section 5 of Limitation Act. for condonation of delay. Said petition without being numbered, application filed under Section 5 of limitation Act, was dismissed by the Civil judge, (Sr. Dn.), Chitradurga, by an order dated 31-1-2003. Thereafter petitioner has filed Misc. 7/2003 under Order 43, Rule 1, cpc before the District Judge, Chitradurga, who by the impugned order dated 7-4-2005, has dismissed the appeal, confirming the order passed by the Civil Judge (Sr. Dn.), chitradurga, in the said unnumbered misc. petition. Being aggrieved, this writ petition has been filed.

(2.) HEARD learned counsel appearing for the parties and perused the record of writ petition.

(3.) SRI. H. N. Prakash, learned counsel appearing for petitioner contended that, order dated 31-1-2003 passed both in the unnumbered misc. Petition of 1996 and confirmed in R. A. 7/2003 on 7-4-2005, as illegal and without jurisdiction. He contended that, there was a bona fide mistake committed by petitioner in approaching Civil Judge (Sr. Dn.), chitradurga by filing a petition under Order 9. Rule 9, CPC along with I. A. 1 for condonation of delay. Since I. A. 1 in the said petition was dismissed and consequently the petition was held to be barred by time, learned district Judge has failed to exercise the jurisdiction vested in him in not setting aside the impugned order before him. He contended that, lower Court having noticed the abatement of MADR proceedings, has erred in dismissing the appeal. He contended that, despite noticing the illegality committed by the learned Civil Judge, (Sr. Dn.), the District court has not interfered, which amounts to failure to exercise jurisdiction vested in it. He contended that this Court exercising the writ jurisdiction, can correct the mistake committed by the Courts below and since the appeal abated only on account of repeal of the Act and not on account of any acts attributable to petitioner, this Court should mould the relief and direct the restoration of the appeal to its file and to proceed with R. A. 5/1969 for disposal in accordance with law.