IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 RFA.No. 149 of 2010() --------------------- ( OS.60/2000 of SUB COURT, NEYYATTINKARA) .................... APPELLANTS/SECOND DEFENDANT ------------------------------------------------------ FLORANCE, D/O.KUNJAMMA,AGED 47 YEARS, RESIDING AT ROADARIKATHU VEEDU, KOTTAMAM, ARAYOOR P.O., CHENKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.C.M.STEPHEN 1ST RESPONDENT/PLANTIFF --------------------------------------- 1. MOHAN DAS, S/O.PATHROSE, AGED ABOUT 48 YEARS, RESIDING AT MOHAN NIVAS, ANDUCODE DESAM, ANDUCODE VILLAGE,VILAVAMKODE TALUK, TAMIL NADU. 2ND RESPONDENT/1ST DEFENDANT --------------------------------------------------- 2. JAMES, S/O.HABEL, AGED ABOUT 48 YEARS RESIDING AT FOURTH MAIN, DOORVANI NAGAR P.O. WHITE FIELD, BANGALORE-560016. R1 BY ADV. SRI.R.GOPAN R2 BY ADV. SRI.C.J.SOLOMAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- C.M.Appln.408 OF 2010 & R.F.A.No.149 of 2010 ------------------------------------ Dated this the 23rd day of February, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The C.M.Application is filed seeking condonation of delay of 2211 days in filing the appeal. The petitioner, who was arrayed as the second defendant in the suit from which this appeal arises, pleads that at the relevant time, she was residing in Bangalore and had no idea whatsoever about the proceedings in the court below. She refuted having received the process from the court below. In the plaintiff’s counter affidavit to this C.M.Application, it is stated that the second defendant had engaged different Advocates even after the earlier engagements were relinquished by Advocates who had appeared in the first instance. With this, we thought it appropriate to summon the records from the court below, more particularly because the appellant had filed RFA.149/10 2 interlocutory application seeking that the certified copies of the Vakalath Namas shown to have been filed before the court below may be called for. 2.On the basis of the submissions made on the merits of the matter, having regard to the enormous delay and having had a look at the LCR, we thought it fit to ask the petitioner to appear before us. She has appeared. The plaintiff is also present. The identity of the second defendant is not disputed. To exclude any controversy on the genuineness of Ext.A7, we obtained the left thump impressions, signatures and handwriting of the appellant taken in the presence of the Registrar (Judicial) of this Court under our order. After that, we spoke to the appellant. She says that she had executed Ext.A7 but she and her learned counsel points out that her defence is that Ext.A7 was executed for a different reason and was in favour of a money lender. We are not going to the merits of those submissions in the light of the procedure being adopted by us. RFA.149/10 3 3.A perusal of the judgment evidently shows that it was delivered ex parte. The appellant disputes the written statement shown to have been filed by her before the court below. She challenges the authority of the Advocate who had filed Vakalath as that executed by her. The appellant also stated before us that she did not receive summons. Therefore, notwithstanding the delay, it would be only appropriate that she gets an opportunity to move the trial court seeking condonation of delay and applying for setting aside the ex parte decree. 4.We record the submission on behalf of the plaintiff that an application for setting aside the ex parte decree has already been filed. We also record the submission on behalf of the appellant that no such application was filed on her behalf. 5.In the light of what is aforesaid, learned counsel for the appellant seeks leave to withdraw this C.M. Application and RFA.149/10 4 the appeal. The request is granted. The C.M. Application and appeal are dismissed as withdrawn without entering on merits and without prejudice to the right, if any, of the appellant to seek remedy under Rule 9, Rule 13 and Section 5 of the Limitation Act through the court below. Obviously, the court below will take into consideration the time taken by the appellant in prosecuting this matter before this Court in the light of Section 14 of the Limitation Act. In view of this withdrawal, the appellant is entitled to refund of the entire court fee paid on this appeal. The court fee paid on this appeal is ordered to be refunded. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.24/2.