IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 RSA.No. 1023 of 2010() ---------------------- AS.117/2009 of ADL.SUB COURT, THALASSERY OS.208/2005 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT/APPELLANT/RESPONDENT -------------------------------------------------- RAJENDRAN PARAKAT,AGED 46 YEARS, S/O.NARAYANAN NAMBIAR,'SUPRIYA', NEAR NITHYANANDA NAGAR HOUSING COLONY, P.O.PALLIKUNNU,KANNUR. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): RESPONDENT ------------------------- P.RUPENDRAN,AGED 49 YEARS, S/O.NARAYANAN NAMBIAR,EMPLOYED AT MERCHANT NAVY, 'SUPRIYA',P.O.PALLIKUNNU,THROUGH P.A.,HOLDER SANILA K.P,D/O.LAKSHMANAN KOTTAI,AGED 42 YEARS, 'SUPRIYA',P.O.PALLIKUNNU. ADV. SRI.M.GOPIKRISHNAN NAMBIAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A No.2251/2010 DISMISSED 15/10/2010 Sd/- S.S.SATHEESACHANDRAN JUDGE P.A TO JUDGE S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1023 OF 2010 -------------------------------- Dated this the 15th day of October 2010 JUDGMENT The appeal is directed against the rejection of the first appeal by the court below, on dismissal of the petition moved for condoning the delay of 58 days in preferring such appeal. Notice given, respondent has entered appearance through counsel. 2. Final decree passed in a suit for partition was sought to be challenged in the first appeal before the court below with a petition for condonation of delay. The reasons set out for condoning the delay were found unacceptable to the lower appellate court, which dismissed the application, and rejected the appeal as well. Perusing the impugned order passed by the lower appellate court dismissing the petition to condone delay, it is seen, the reason adverted to for such condonation was not considered, but, the objections raised by the respondent/plaintiff weighed with the court to hold that such petition was meritless. Stay petition moved in the appeal was not allowed, which had been moved with petition for condoning delay in preferring the appeal, and the allotments made under the final decree by the trial court appeared to be unassailable were some of the observations made by the lower appellate court to dismiss the R.S.A No.1023 OF 2010 2 petition to condone delay. There is no reference, whatsoever, in its order as to the cause stated by the appellant for condonation of delay or its consideration on merits. That being so, I find, the order dismissing the petition to condone delay cannot be sustained and it is liable to be set aside. The rejection of the appeal also is liable to be reversed. I find that having regard to the fact that the challenge raised in the first appeal is against the final decree passed in a suit for partition, further delay can be avoided by condoning the delay in preferring the first appeal subject to terms, compensating the injury likely to be suffered by the respondent in entertaining such time barred appeal. Appellant shall pay a sum of Rs.1000/- to the respondent as a condition precedent for entertaining his appeal and if such sum is paid within a period of two weeks to the counsel appearing for the respondent before this court, then alone, he will be entitled to prosecute the first appeal after reversal of the decision rendered by the court below. For report, post after two weeks. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// vdv P.A to Judge