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IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 17 TH DAY OF MARCH, 2015

BEFORE

THE HON’BLE MR. JUSTICE A S BOPANNA

REGULAR SECOND APPEAL No.124/2013 (PAR)

BETWEEN:

1. SRI. VENKATARAMAPPA S/O MUNIVENKATAPPA, AGED ABOUT 43 YEARS,

2. SMT. LAKSHMAMMA W/O MUNIVENKATAPPA, AGED ABOUT 88 YEARS,

3. SMT. PADMAMMA D/O MUNIVENKATAPPA, AGED ABOUT 33 YEARS,

Nos. 1 TO 3 ARE R/AT THORADI VILLAGE, KASABA HOBLI, MULABAGAL TALUK, DISTRICT-563131

4. SMT. THULASAMMA W/O CHANDRAPPA, AGED MAJOR, R/AT SAREDDYPALLI VILLAGE, PALAMANER TALUK, CHITTOR DIST. -517 004

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5. SMT. SARASWATHAMMA W/O VENKATAMUNI, AGED ABOUT 36 YEARS, R/AT APPODAPALLI VILLAGE, MULABAGAL TALUK, KOLAR DISTRICT-563 131 ... APPELLANTS

(BY SRI. S VISWESWARAIAH, ADV.)

AND:

1. SMT. NAGARATHNAMMA D/O MUNIVENKATAPPA, AGED ABOUT 53 YEARS, R/O KOTHUR VILLAGE, RAMASANDRA MANDALAM, TALUK, CHITTOR DISTRICT-517004 ANDHRA PRADESH

2. SMT. LAKSHMIDEVAMMA D/O MUNIVENKATAPPA, W/O LAKKAPPA @ LAKSHMAPPA, AGED MAJOR, R/O VEMPALLI VILLAGE, BYRAKUR HOBLI, MULABAGAL TALUK, KOLAR DISTRICT-563 131 ... RESPONDENTS

THIS APPEAL IS FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 27.07.2006 PASSED IN R.A.NO.45/2004 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT III, KOLAR, PARTLY ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD 5.10.2004 PASSED IN OS.NO.134/1995 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & CJM, KOLAR.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING :

J U D G M E N T

The instant appeal is filed essentially against the concurrent findings of the Courts below that the properties are the joint family properties, though ultimately the Lower Appellate Court has allowed the appeal in part and modified the share that had been granted by the trial Court.

2. In the said situation, though the appellants have assailed the said concurrent findings of the Courts below, there is inordinate delay of 2369 days in filing the appeal. Hence, I.A.No.1/2013 is filed seeking condonation of delay. When there is delay of more than six years in filing this appeal, the explanation in the affidavit should certainly constitute sufficient cause which

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had prevented the appellants from approaching this

Court.

3. However, the perusal of the affidavit sworn to by the fifth appellant would indicate that though the

Lower Appellate Court had passed the judgment on

27.07.2006, the deponent to the affidavit had come to know about the judgment in R.A.No.45/2004 only on

14.08.2012. It is stated that when she enquired the counsel who had appeared on her behalf in the Lower

Appellate Court, he had stated that a letter had been written. The deponent however states that she had not received such letter and came to know of the judgment only when she received summons in FDP No.3/2008.

Even if the explanation that she did not receive any letter from the Advocate is accepted on its face value, in my opinion, even then it does not constitute a valid cause much less sufficient cause for accepting the explanation.

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When the appellants herein were themselves the appellants before the Lower Appellate Court, certainly it had enjoined them to make enquiries with the counsel with regard to progress of their appeal.

4. Therefore, the explanation as put forth cannot be accepted when there is such long delay and the right of the parties gets crystallized. In that view,

I.A.No.1/2013 is rejected. Consequently, the appeal stands dismissed.

In view of dismissal of the main appeal,

I.A.No.2/2013 is also disposed of.

Sd/- JUDGE

hrp/bms