IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 RSA.No. 1358 of 2010() ---------------------- AS.7/2010 of DIST & SESSIONS COURT, ALAPPUZHA OS.471/2004 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. RAGHAVAN, S/O. CHENNI, KOTTAPPARAMBIL, WARD NO.XI, VELIYANADU MURI, VELIYANADU VILLAGE, ALAPPUZHA DISTRICT. 2. VILASINI, D/O. RAGHAVAN, -DO- -DO- 3. SYAMALA, D/O. RAGHAVAN, NOW WORKING AS NURSE, DEE KEEN, PHC MANDSAUR, M.P.-458 224. 4. MOHINI, D/O. RAGHAVAN, -DO- -DO-, NOW RESIDING AT MANALADICHIRA, THIRUVARPU P.O., KOTTAYAM. 5. THILAKAMMA, D/O. RAGHAVAN, WARD NO.XI, VELIYANADU MURI, VELIYANADU VILLAGE, ALAPPUZHA DISTRICT. 6. SHYLAJA K.R., D/O. RAGHAVAN, -DO- -DO-, NOW WORKING AS NURSE, ABATHI, MANDASAUR, M.P.-458 002. (APPELLANTS, 3,4 AND 6 ARE REP.BY THEIR POWER OF ATTORNEY HOLDER, THE 2ND APPELLANT). BY ADV. SRI.R.AZAD BABU RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- LEYSAMMA, D/O. RAGHAVAN, MARAMUTTOM LAKSHAM VEEDU COLONY, VELIYANADU VILLAGE, ALAPPUZHA DISTRICT. ADV. SRI.S.SANAL KUMAR(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.No. 1358 of 2010() ORDER IN I.A No.3194/2010 DISMISSED. 24/01/2011 Sd/- S.S.SATHEESACHANDRAN JUDGE P.A To Judge S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1358 OF 2010 -------------------------------- Dated this the 24th day of January 2011 JUDGMENT The defendants in a suit for partition are the appellants. As against the final decree passed in the suit, these appellants/defendants preferred an appeal with a petition to condone delay of nearly two years in presenting such appeal. Not being satisfied with the cause pleaded for condoning the delay, the lower appellate court dismissed the application moved under Section 5 of the Limitation Act, which in turn resulted in rejection of the appeal as such. As against the rejection of the appeal consequent to the dismissal of the petition to condone delay, the present appeal has been preferred. Though doubts persist over the maintainability of a Second Appeal against the rejection of a first appeal dismissing a delay condonation petition, having regard to the conflicting decisions rendered by the apex court over that question in “Chandi Prasad v Jagdish Prasad” (2004(3) KLT 654 (SC)) and “Shyam Sundar Sarma v Pannalal Jaiswal” (2005(1) KLT 198 (SC)), I have considered the entertainability of the appeal against the decision of the courts below. R.S.A No. 1358 OF 2010 - 2 - 2. Notice given, the respondent/plaintiff has entered appearance. The learned counsel for the appellants contended that opposing the application for passing the final decree, the appellants have requested for permitting them to purchase the property due as the share of the respondent fixing the price thereof in accordance with the market value. The share alloted to the plaintiff is negligible and the property which is a paddy land for its convenient use require to be kept as undivided is the submission of the counsel. The report and plan of the commissioner to which the appellants had raised serious objections were not properly examined by the trial court and it has caused miscarriage of justice, according to the counsel. Per contra, the learned counsel appearing for the respondent contended that no sustainable ground has been set out in the application for condoning the delay and in fact the appeal with the petition for condonation of delay was moved after receiving notice and resisting the execution proceedings, so as to stall the delivery of the property alloted to the plaintiff. The appeal is devoid of any merit, is the submission of the counsel. 3. Perusing the order passed by the lower appellate court dismissing the petition to condone delay, it is seen, after receiving notice in the execution proceedings these appellants filed R.S.A No. 1358 OF 2010 - 3 - objections and also resisted the execution of the decree. When all their attempts put up in the execution failed to stall the decree from being executed, it is evident, the appeal was preferred with the petition to condone the inordinate delay of nearly two years. So far as the pleas raised that the final decree was passed without taking into consideration the equitable plea raised for purchasing the property due as the share of the respondent, I do not find any merit at all. Where the plaintiff has been alloted about 7 cents out of the 50 cents as her share in the suit property, it cannot be considered as negligible. At any rate, the appellants have no vested right to purchase the share of the plaintiff to have continuous occupation and enjoyment of the suit property as a whole. She has not claimed any share in the residential building under the occupation of the first defendant as evidenced by the preliminary judgment is also a circumstance to be taken note of that she cannot be deprived of the possession and enjoyment of the property determined towards her share in the suit property. There is no merit in the appeal, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN vdv JUDGE //True Copy// P.A to Judge