IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 RSA.No. 180 of 2009() --------------------- AS.265/2005 of DISTRICT COURT, THALASSERY EA Nos. 294/05 and ,295/05 in EP 138/98 in O.S. 192/2004 OF PRINCIPAL MUNSIFF,KANNUR .................... APPELLANTS/APPELLANTS/PETITIONERS ----------------------------------------------------- 1. ERAYI RAMYA, D/O.N.V.GOWRI, AZHIKODE AMSOM, DESOM, CHALIL PO., AZHIKODE, KANNUR. 2. ERAYI RAGI, D/O.N.V.GOWRI, DO. 3. ERAYI RAGHUL MINOR REP. BY GUARDIAN MOTHER N.V.GOWRI , DO. BY ADV. SRI.R.PARTHASARATHY RESPONDENTS/RESPONDENTS/RESPONDENTS ----------------------------------------------------------- 1. KOOKRI ASHOKAN, S/O.ACHUTHAN, BEEDI WORKER, KOOKRI HOUSE, AZHIKODE AMSOM DESOM, PO.AZHIKODE, KANNUR-9. 2. ERAYI RAVEENDRAN, S/O.KUMARAN, DRIVER, ERAYIL HOUSE, AZHIKODE AMSOM, DESOM, PO.AZHIKODE KANNUR-9. ADV. SRI.N.NAGARESH FOR R1 SRI.K.BABU FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.180 of 2009 ---------------------------------------- Dated this the 22nd day of July, 2009 JUDGMENT The petitioners in E.A. Nos. 294 and 295 of 2005 in E.A No. 145/2000 in E.P. No. 138/1998 in O.S. No.192 of 1994 on the file of the Munsiff Court Kannur are the appellants. They are appellants in A.S. No. 265 of 2005 on the file of the District Court, Thalassery. The Execution Applications filed by the petitioners/appellants were dismissed by the trial court and confirmed in appeal. Hence the Second Appeal. The parties hereinafter referred to as appellants and respondents. 2. The petitioners in E.A Nos. 294/2005 and 295/2005 are the claim petitioners and the legal heirs of the judgment debtor as well. They claimed title over the property under attachment on the strength of gift deeds executed in their favour by the judgment debtor in the year 1998. The appellants did not prosecute E.A No.145/2000 vigilantly even though several opportunities were given to them. The trial court on merits held that the order sheet in E.A. 145/2000 shows that the counsel appearing for the petitioners/appellants had reported on 10.12.2004 that the appellants have no oral evidence and even thereafter three more adjournments were given. Being found that the appellants were not at all diligent in conducting the case, E.A No.145/2000 was dismissed for default on 15.3.2005. The trial court also dismissed E.A. No. 294/2005 filed under R.S.A. No. 180 of 2009 -2- Section 5 of the Limitation Act and E.A No. 295/2005 under Order 21 Rule 106 CPC for restoration of E.A. No. 145/2000 after condoning the delay. 3. The dismissals of the aforesaid E.As are challenged in the Appeal Suit. No. 265/2005 . The lower appellate court held that 30 days period is prescribed under Order 21 Rule 106(3) CPC to set aside an order passed under Rule 105(2) CPC. Application under Section 5 of Limitation Act is specifically excluded . The lower appellate court also held that since Section 5 of the Limitation Act is not applicable to proceedings arising under Order 21 C.P.C , E.A. 294/2005 is not maintainable, the delay in filing E.A No. 295/2005 cannot be condoned and hence liable to be dismissed. I find that the trial court decided E.A Nos. 294 and 295 of 2004 on merits and held that there is no justification in prosecuting the said applications belatedly. The trial court held that in spite of several opportunities are given to the appellants they did not avail of any of the opportunities and therefore the dismissal of the said applications are justifiable. . Before the lower appellate court, the only contention taken is regarding the applicability of Section 5 of the Limitation Act. The dismissal of the said E.A.s by the trial court and the confirmation of the same by the lower appellate court according to me, are valid and cannot be assailed on facts or law. . Even assuming that Section 5 of the Limitation Act is applicable, as contended by the appellants in this Second R.S.A. No. 180 of 2009 -3- Appeal , the appellants were negligent in prosecuting the case and hence the dismissals of E.A Nos. 294 and 295 of 2005 by the courts below for the reason that the appellants do not intend to prosecute the case, are perfectly justifiable in the facts and circumstances of the case. The contentions raised in this Second Appeal are without any merit. I find that the appellants have not made out any grounds in this Second Appeal to invoke this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and is dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 180 of 2009 ---------------------------- JUDGMENT 22nd July, 2009