Case Note & Summary
The appellant, a defendant in a partition suit, filed a Regular First Appeal under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908, challenging the preliminary decree dated 27.08.2014 passed by the II Additional Senior Civil Judge, JMFC, Kolar (itinerating at Mulbagal) in O.S. No. 244/2012. The suit was filed by the first respondent (plaintiff) seeking partition and separate possession of joint family properties. The trial court decreed the suit in part, holding that the plaintiff and defendant Nos. 2 to 4 were each entitled to a 1/4th share in item Nos. 1 to 16 of plaint 'A' schedule properties and plaint 'B' schedule items. The claim for partition in respect of item Nos. 17 and 18 of plaint 'A' schedule was dismissed. The plaintiff was also held entitled to mesne profits from the date of suit till recovery of her share from defendant No. 4. The appellant, who was defendant No. 1 in the suit, appealed against this decree. However, when the appeal came up for hearing, the appellant was absent and his counsel was also absent. The court noted that the appeal had been pending and the appellant had not appeared on earlier occasions. The court observed that no grounds were made out for interference with the impugned judgment and decree. Consequently, the appeal was dismissed for non-prosecution. The court did not examine the merits of the case due to the appellant's failure to appear and argue.
Headnote
A) Civil Procedure - Appeal - Dismissal for Non-Prosecution - Order 41 Rule 11 CPC - Section 96 CPC - Appeal filed by defendant against preliminary decree for partition - Appellant absent on multiple hearings and no representation - Court dismissed appeal for non-prosecution as no grounds made out - Held that appeal can be dismissed summarily under Order 41 Rule 11 CPC when appellant fails to appear or argue (Para 2).
Issue of Consideration
Whether the appeal against the preliminary decree for partition and separate possession is maintainable and whether the appellant has made out any grounds for interference.
Final Decision
Appeal dismissed for non-prosecution. No order as to costs.
Law Points
- Partition
- Preliminary Decree
- Appeal Dismissed for Non-Prosecution
- Order 41 Rule 11 CPC
- Section 96 CPC
