IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 RFA.No. 491 of 2009() --------------------- AGAINST THE ORDER DATED IN IA 3211 /2002 IN AROP.272/2001 of VI ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT/ CLAIM PETITIONER IN IA: ------------------------------------------- K.K.MURUGAN, AGED 37 YEARS, S/O.LATE MR.KUNJAN ACHARI, KOCHUKARIPAL, B.H.S.ROAD, TRIPUNITHURA. BY ADV. SRI.P.M.MOHAMMED SHIRAZ SMT.G.R.MANJU RESPONDENT(S): RESPONDENTS IN CLAIM PETITION -------------------------------------------- 1. V.N.REJI, AGED 37 YEARS, S/O.NARAYANANKUTTY, VALLAYIL HOUSE, IRIUMPANAM P.O., TRIPUNITHURA. 2. K.K.SUNDARAM, KOCHUKARIPAL HOUSE, B.H.S.ROAD, TRIPUNITHURA, PRESENTLY RESIDING AT NJARAVELIL HOUSE, TEMPLE ROAD, KADAVANTHARA P.O., KOCHI-20. ADV. SRI.G.RAJAGOPAL FOR R2 SMT.S.LEELALAKSHMI FOR R2 SRI.VARGHESE C.KURIAKOSE FOR R1 SRI.ADEEP ANWAR FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - C.M.Appln.No.1291 of 2009 in R.F.A. No.491 OF 2009 & R.F.A. No.491 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of March, 2010 JUDGMENT Basheer, J. The prayer in this Miscellaneous Application filed under Section 5 of the Limitation Act is to condone the delay of 1605 days in filing the appeal, which is directed against the order in I.A.No.3211/2002 in Arb.O.P.No.272/2001 on the file of 4th Additional District Judge's Court, Ernakulam. 2. By the impugned order, the court below held that the claim petition filed by the petitioner/appellant under Order XXI Rule 58 of the Code of Civil Procedure was unsustainable and accordingly the claim petition was dismissed. 3. Before we deal with the averments contained in the affidavit filed in support of the application to condone the delay, it will be relevant and profitable to refer to the case of the parties in the claim petition. RFA.No.491/2009 2 4. Arb.O.P. was instituted by respondent No.1 in the appeal against respondent No.2 under Section 9 of the Arbitration and Conciliation Act 1996 seeking attachment of a property belonging to the latter. 5. According to the appellant, the petition schedule property, which is the subject matter of the Arb.O.P., belonged to Kunjan Achari, his father on the strength of a registered sale deed of the year 1984. Appellant contended that Kunjan Achari had executed a Will in the presence of his own brother Kutti Achari and other witnesses on July 9, 1984. The case of the appellant was that the petition schedule property was bequeathed to him under the Will by Kunjan Achari. He contended that neither he nor the other legal heirs were aware of the execution of the will. But when some dispute arose between the appellant and his brother Sundaram ( respondent No.2), he came to know about the will. Still later, he came to know that respondent No.1 had obtained an order of attachment in respect of the said property in connection with the dispute between him and respondent No.2. It was thus that the appellant/petitioner happened to file the above interlocutory application RFA.No.491/2009 3 in the Arbitration O.P. referred to above. 6. Respondent No.1 contended before the court below that Kunjan Achari had never executed any will as alleged by the appellant/petitioner and the claim petition was a collusive affair between the appellant and respondent No.2 in order to defeat his legitimate rights. 7. Appellant got himself examined before the court below as PW1. Exts.A1 and A2 (Will dated July 9, 2004) were also marked on his side. 8. The two alleged witnesses to the Will (RW1 and RW2) were examined at the instance of respondent No.1. RW1 and RW2 in their deposition categorically stated that they had not witnessed the execution of the Will nor had they ever signed any Will as witnesses. The learned Judge after considering their oral testimony came to the conclusion that the Will alleged to have been executed by deceased Kunjan Achari is a concocted document and therefore the claim put forth by the appellant was unsustainable. It was also noticed by the court below that none of the attestors of the Will or the scribe were RFA.No.491/2009 4 examined. Appellant had also no credible or direct information about the Will coming into existence as alleged by him. In short, the court below categorically found that the claim made by the appellant on the basis of the Will was wholly untenable. 9. The above order is sought to be challenged in the appeal after an inordinate delay of 1605 days. In the affidavit, it is conceded by the petitioner/ appellant that he knew that the impugned order was passed by the court below on October 18, 2004. Curiously, the case of the petitioner is that he could not instruct his counsel properly due to his ignorance and poverty and it was because of that reason that the claim petition happened to be dismissed. Any how, it is further alleged by him that after dismissal of the claim petition, he was informed by his brother (respondent No.2) that he would settle the matter with respondent No.1 and see that the order of attachment obtained by respondent No.1 was lifted. He further asserts that later he came to know that respondent No.2 had paid off the amount due to respondent No.1 covered under the arbitration award and thus full satisfaction had been recorded in the execution petition. The further allegation is that RFA.No.491/2009 5 in 2008 he received a notice in a partition suit instituted by his mother claiming her share in the petition schedule property along with other properties left behind by Kunjan Achari. The lawyer whom he engaged in the suit advised him that the impugned order will have to be got set aside as other wise it will cast a cloud over his exclusive right and title in respect of the petition schedule property. 10. Having perused the averments in the affidavit, we are not at all satisfied that any reliance can be placed on the story now being cooked up by the petitioner. According to the petitioner, he came to know about the institution of the suit by his mother in 2008 itself. Even before that he was fully aware that his claim petition was dismissed by the court below in 2004 itself. But there is not even a whisper as to what prevented him from challenging the order passed by the court below immediately thereafter. His explanation is that respondent No.2 had informed him that his dispute with respondent No.1 would be settled amicably. This appeal has been filed only in 2009. There is no explanation as to what prevented him from filing the appeal atleast immediately after he received the suit notice in 2008( curiously there is RFA.No.491/2009 6 no mention about the exact date or month when he received the suit notice). There is no merit at all in the delay petition. Even if a lenient view is taken in the matter of condonation of delay, we have no hesitation to hold that there is absolutely no merit in the appeal also. Therefore, the delay petition is dismissed. Consequently, the Appeal is also dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. RFA.No.491/2009 7