IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 RSA.No. 870 of 2010() --------------------- AS.24/2009 of ADL.SUB COURT, THALASSERY OS.404/1991 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT/DEFENDANT NO.5 -------------------------------------------- KIZHAKKETHAKIDIYIL VARKEY, S/O.JOSEPH, AGED 49 YEARS, ARALAM AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDANTS 1,2,3,4,6-10 -------------------------------------------------------------- 1. MARY THOMAS, W/O.THOMAS, AGED 51 YEARS, KALLANCHERY HOUSE, NEDUMUNDA, PAYAM P.O., ARALAM AMSOM DESOM THALASSERY TALUK, KANNUR DISTRICT. 2. PULIYANIKKATU THRESSIA, W/O.MATHAI, AGED 84 YEARS, VAYATHUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 3. PULIYANIKKATTU ANTHRAYOSE @ PAPPACHAN, S/O.MATHAI, VAYATHUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 4. PULIYANIKKATTU JOSE @ JOSEPH, S/O.MATHAI, AGED 49 YEARS, VAYATHUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 5. JOSEPH K.J., S/O.JOSEPH, AGED 48 YEARS, ARALAM AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. 6. KARINTHAKARAMATTAM JOHNY, AGED 67 YEARS VAYATHUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 7. ANTO, S/O.KARINTHAKARAMATTAM JOHNY, AGED 35 YEARS, VAYATHUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 8. SIJO, S/O.KARINTHAKARAMATTAM JOHNY, AGED 30 YEARS, VAYATHUR AMSOM DESOM, TALIPARAMBA, KANNUR DISTRICT. 9. JIJI, D/O.KARINTHAKARAMATTAM JOHNY, AGED 21 YEARS, VAYATHUR AMSOM DESOM, TALIPARAMBA, KANNUR DISTRICT. SRI.C.P.PEETHAMBARA N (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ----------------------------- R.S.A.No.870 of 2010 ---------------------------- Dated this the 29th day of July, 2010 JUDGMENT In this second appeal the defendant No.5 in O.S.404 of 1991 seeks to challenge allotment in execution of the final decree in a partition suit for the year 1991. 2. Preliminary decree was passed in 1996 and a final decree in 2003. In 2009 the appellant filed A.S.24/2009 before Sub Court, Thalassery with a petition to condone the delay of 1858 days in filing the appeal. 3. The reason as could be discerned from the order is that counsel had informed about passing of the final decree after one year. Thereafter he engaged another counsel to apply for the copies of judgment and decree. He would say that said counsel had made application only for the certified copy of the judgment. Subsequently he claims to have engaged another counsel. That counsel has filed the copy application for decree on 22.1.2009 and final decree was obtained on 5.2.2009. 4. The court below on an elaborate consideration of the R.S.A.No.870 of 2010 2 petition for condonation of delay found reasons given for the delay to be totally unacceptable and dismissed the petition. Consequently the appeal was also dismissed. The above order is assailed in this appeal. 5. Learned counsel appearing for the appellant pointed out that the appellant is highly aggrieved because the appeal has not been heard on merits and it is dismissed on technical ground of delay. 6. Though the arguments may look attractive, it is without any basis. Lower Court has observed that the case of the petitioner was that he had engaged several counsels and that they did not do things promptly cannot be accepted. There was absolutely no evidence at all to show that the claims made by the petitioner were true. The lower court while disposing of delay condonation of application has noticed certain aspects. It has been noticed by the court below that petitioner had not paid any court fee for separate allotment of his share. Therefore, 1/6th share alone was separately handed over to the plaintiff. It is also noticed that on the basis of contentions, the houses and wells R.S.A.No.870 of 2010 3 situated in the property are allotted to the share of the defendants including the petitioner without valuation. Apart from the fact putting forward since lame excuse for his laches and negligence the court below has noticed that no acceptable grounds or sufficient cause has been shown to condone the erroneous delay. Considering the reasons given and also on going through the facts of the case it is found that the appeal is without any merit and it is accordingly dismissed. P.BHAVADASAN, JUDGE cms