(Prayer: This RFA is filed under Section 96 of CPC., praying to, set aside the impugned Judgment dated 04.02.2022 passed by the Court of Senior Civil Judge and Judicial Magistrate first class, Kudligi, sitting at Sandur, in FDP No. 03/2014 and etc.,.

This RFA is filed under Section 96 of CPC., praying to set aside the Judgment and Decree dated 24.10.2013 passed in O.S.No.11/2012 on the file of the Senior Civil Judge Kudligi, decreeing the suit filed for partition and possession.)

Oral Judgment:

H.P. Sandesh, J.

1. These two appeals are filed challenging the preliminary decree passed in O.S.No.11/2012 vide judgment dated 24.10.2013, with a delay of 3418 days and other appeal in RFA 100137/2024 is against the order passed in FDP No.03/14 vide order dated 04.02.2022 drawing up a final decree with the delay of 648 days.

2. Heard on both the IA’s for condonation of delay and The contention of the appellant is that when the appellant impleaded as party in the FDP proceedings, the same was rejected and the said appeal is also filed with the delay of 648 days. The counsel would submit that other family members have executed the sale agreement and also executed the sale deed in the year 2015 and when the trial Court in FDP proceedings ordered to survey the land came to know about the preliminary decree and immediately, an application was filed to implead the appellant as party to the proceedings in FDP and the said application was allowed and contested the FDP proceedings. He further submits that in the FDP proceedings, the claim of the appellant was rejected in coming to the conclusion that the appellant has no locus and it is the suit for the relief of partition and separate possession by one of the coparceners of family and even the rejection of claim made by the appellant was challenged with delay of 648 days and so also with regard to the preliminary decree, the appeal was also filed with a delay of 3418 days.

3. The counsel appearing for the appellant would vehemently contend that when they were not parties to the original suit and when it has come to the notice of preliminary decree, the appeal was filed. But in fact, the preliminary decree is challenged in the year 2023 and an application is filed in 2018 itself to come on record in the FDP proceedings, but not filed the appeal immediately challenging the final decree proceedings and only after the claim was rejected in the FDP proceedings, the present appeal is filed challenging the preliminary decree.

4. Per contra, the counsel appearing for the respondents would vehemently contend that there was no need to make them as party to the proceedings and it was only a sale agreement, when the suit was filed for partition and also suit was decreed in 2013 itself, after lapse of 10 years, the preliminary decree of the judgment was challenged before this Court with inordinate delay of 3418 days. The counsel also submits that even in the FDP proceedings, they came on record and FDP Court also permitted them to come on record and on merits, FDP also disposed off and in challenging the FDP proceedings also, the appeal was filed with inordinate delay. Hence, they cannot contend that they are not having the knowledge of the judgment of preliminary decree as well as the final decree. The counsel also submitted that they are only an agreement holder and there was no any suit for the relief of specific performance was filed based on the sale agreement. Though appellant counsel claims that there was a sale deed in the year 2015, and when they come to know about the preliminary decree in 2018 and came on record in the FDP proceedings, they have not taken any decision to challenge the preliminary decree but contested the matter in FDP proceedings and trial Judge also comes to the conclusion that the appellant has no locus to challenge the same. The counsel also submits that they cannot file appeal before this Court and they were not having any locus to challenge these decrees as they were not parties as well as in respect of the share granted by the trial Court is concerned, it is not their case that this respondent/plaintiff has executed either sale agreement or any of the document and trial Court rightly granted the decree in favour of the respondent. The counsel also would submit that the judgment of the Apex court in Shivamma (Dead) by Lrs Versus Karnataka Housing Board and Others decided on 12.09.2025 reported on 2025 SCC Online SC 1969, the Apex Court heavily came across against the Government when there was inordinate delay and hence, this judgment is aptly applicable to the case on hand.

5. Having heard the counsel appearing for the appellant and also the counsel appearing for the respondentss, it is trite law that when there is an inordinate delay, each day delay has to be explained by the appellant. In the case on hand, no dispute that preliminary decree was passed in the year 2013 and the Regular First Appeal challenging the preliminary decree was filed after lapse of 10 years i.e. with the delay of 3418 days and also it is not in dispute that they themselves have filed an application before the FDP Court in the year 2018 and the application was also allowed and an opportunity is given in the FDP Court to substantiate their claim. But the trial Court in FDP proceedings also dealt with each aspect and also made it clear that there was no any either sale agreement or sale deed by the plaintiff/respondent and considered the material and record. Even while filing the appeal against the final decree proceedings also, there was a delay of 648 days and the same is also not properly explained by giving any reasons and in view of the discussion made by the Apex Court in the case of Shivamma supra, heavily come across with the lethargic attitude of the appellants in approaching the Court. The said judgment is aptly applicable to the case on hand. The Apex Court in detail discussed the same even if the appeal is filed by the government also, made it clear that there cannot be any two yardsticks for the private parties or for the government. When such delay is not properly explained, we do not find any ground to condone the delay of 3418 days and so also the delay of 648 days in challenging the preliminary decree as well as the final decree and apart from that, the appellant has no any locus to challenge the same before this Court. First of all, the appellant is not a party in the preliminary decree as well as in the final decree an opportunity was given and the same is dealt with by the FDP Court and also when the appellant is not claiming that there was a sale agreement or sale deed by the plaintiff/respondent, the judgment of preliminary decree is passed considering the right of the plaintiff/respondent while granting the relief. Under the circumstances, we do not find any ground to entertain both the appeals particularly on the ground of delay and even apart from the merits also, no ground is made out to consider the same and accordingly IAs are rejected consequently, both appeals are dismissed.

6. In view of the judgment of the Apex Court in case of Shivamma supra, the Apex Court also directed the trial Court to expedite the matter in enforcing the judgment and decree. Hence, the Execution which is pending before the trial Court in Execution petition Nos.22/2022 and later numbered as 282/2025 as transfer. The trial Judge is directed to expedite the matter in view of the observations made by the Apex Court in a case of Shivamma.