IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 29TH DAY OF NOVEMBER 2011 PRESENT THE HON’ELE MR. JUSTICE K. L. MANJUNATH AND THE HON’BLE MR. JUSTICE K. GOVINDARAJULU REGULAR FIRST APo41612QQJpç] BETWEEN: KALLAPPA PTHREPPA ARALIMATTI SINCE DECD BY HIS LRS la) SURESH Sf0 KALLAPPA ARAUIMAr1l MAJOR. BUSINESS/AGRICULTURIST R/ULBYADAGU58I 106 ib SHIVAYOGI KALLAPPA ARAL1MARA1 MAJOR, AGRICULTURIST/BUSINESS R/OBYADAGU58 1106 Ic) SAVITHRAVVA W/OJ(ALLAPFA ARALIMATIJ MAJOR, H.OUSEHOLD WORK R/OBYADAGU58I 106 APPELLANT (Wi SMT, VEENA HEODE: Sri. NLMNESH RAE): RAE) ASSTSJ, AND: NITOAPPA iATHREPPA ARALIMATTI (IV. 41: IiT IT TI TPTTfT/PT TSiP%S N! OBYA]JAGL TQ BYADAGL58 I IC)6 2. BASAPPA PATHREPPA ARALIMATTI AGE64, AGRICULTURISI/BUSINESS R/OBYADAGi, BYM.AGU581 106. R2 DIED ON 2802.01i REP. BY HIS LR’S: 2a T1PPAWWA 2b) RAMAKKA 26) LAXMAVVA 2& MALATHESH Jfj AKKAIvIMA 2f) KUMARI. MANJULA ALL ARE MAJOR, R/O. NEAR BUS STAND, BYADAGL RESPONDENTS (By Sri N P VIVEK MEHTA ADV. FOR RI SRI LINGESH V.KAT1’IMANI & SRI S,NBANAKAR ADV. FOR R2a TO R2f( THIS RFA IS FILED U/O 41 RULE I R/W, SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE ET. 21.6.05 PASSED IN O.S.NO.142/88 ON THE FILB OF THE CIVIL JUDGE. (SR. DN.i & PRL. JMFC. RANEBENNUR, DISMISSING THE SUIT FOR DECLARAT1ON INJUNCTION. PARTITION N. SEPARATE POSSESSION. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY. KLMANJUNATH, J, DELIVERED THE FOLLO%ViNG: K :3: JUDGMENT The appellants were the plaintiffs in O.S. No.142/1988 on the file of the Civil Judge (Sr.Dn.), Ranebennur. 2. The suit was instituted by the plaintiffs for partition and separate possession and also for declaration and for injunction. The suit was contested by the defendants. Later, the suit was ended in a compromise. A compromise petition was filed by both parties on 06.08.1990. The compromise petition was accepted by the Court and a preliminary decree was passed by virtue of the compromise petition on 07.08.1990. After the preliminary decree was passed, the only plaintiff-Kallappa died in the year 1994 and after his death, his wife and children filed an application for grant of fmal decree by producing stamp papers. Without issuing notice to the defendants, final decree IrlqS proceedings were drawn, dngrosb&d on the required .4. tamp papers b> tht uurt bclua on 06 Ou 2001 The dracdng up of final decree as questioned by the defendants hi filing an appeat below the Honhle High Court of Karnataka irs RFA No 645 ‘2001 on the pound that aftcr th dcath of onginal plaintiff Kallappa application was filed by Ins lagal representatnc.s to come on record and aithout issuing an notice to the defendants, final decree has ben drawn Thei efure. the 1 defendant filed RFA No 645 ‘2001 4 learned Single Judge of this Court on 31.102002 at aside tIn final decree dravu by the court belai’ on the ground that thc LR application was nct filed br the legal repreentatn Cs f tin orgir 4 3la.raf rsd a G ‘5w e ft Pin dray up of fin :rte mst 4 ance ot the legal represer tatne A ‘l’c origirni ,iinnjjs Therefore-. ‘;‘ ordrr e: ‘r ne •Ie-’er t s a’jr ttc, its t..c 1 t ‘ C :5: the fmal decree proceedings within six months from 31.10.2002. 3. After the matter was remanded, instead of proceeding with the final decree application, on account of a wrong notion of both parties and the court below, again the parties went into the trial and without setting aside the preliminary decree drawn, the suit has been dismissed by the court below under the impugned judgment and decree dated 21.06.2005. This judgment and decree is called in question in this appeal. 4. We have heard the learned counsel for the parties. 5. After hearing the parties, we have noticed that the trial court has committed a blunder in not following the directions issued by this Court in the earlier RFA No.645/2001, because when once the preliminary decree is passed in a suit for partition by virtue of the compromise, if a person dies after the preliminary decree is passed, it is for the final decree court to bring the legal representatives or... record and pass appropriate order on••. the. final decree a..pplication and to divide the properties in terms of the share determined by the court while passing the preliminary decree Without doing so, the Court has set aside t.he very same preliminary decree, without understanding the judgment passed by this Court in the appeal. It is unfortunate, even the learned Members of the Bar did not appraise of the fact to the learned Judge and on account of the failure in the entire system of legal fraterntv and judiciary, the parties are in litigation and unable to get the fruits of the preliminary de.cree drawn by virtue of the corn iromise petition dated 06 08. 1990. Therefore, c’n thi.s sho.rt ground, the judgment and decree passed by the Court below has to be set aside. A.ccordingiy, it is S:et asid.e, q :7: The trial court is directed to draw the final decree after giving opportunity for both sides, in accordance with law, within a period of three months from today. Panics to bear theft own costs. Sd! JUDGE JUDGE RKK/