IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 RSA.No. 38 of 2008() -------------------- AS.78/1995 of DISTRICT COURT, PATHANAMTHITTA OS.290/1986 of M.C.,PATHANAMTHITTA .................... APPELLANT/APPELLANT/1ST DEFENDANT ----------------------------------------------------- VALLICODE GRAMA PANCHAYATH, REP. BY SECRETARY, VALLICODE, PATHANAMTHITTA DIST. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENT/RESPONDENT/ADDL. PLAINTIFF & 2ND DEFENDANT --------------------------------------------------------- 1. KOCHU KUNJU KURUP KUTTAPPAKURUPPU, EDATHARA PUTHENVEEDU, VAZHAMUTTAMMURI, VALLICODE, PATHANAMTHITTA. 2. THE DISTRICT COLLECTOR, PATHANAMTHITTA. ADV. SRI.V.SETHUNATH FOR R1 GOVERNMENT PLEADER: L G SURESH BABU THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- C.M.Appl.No.33 of 2008 in R.S.A.No.38 of 2008 --------------------------------------- Dated this 07th day of October 2009 ORDER This is an application filed by the appellant, a Grama Panchayath represented by its Secretary for condonation of delay of 1096 days in filing the second appeal against concurrent finding of fact entered by courts below that respondent No.1 has title and possession of the suit property which is 4 cents acquired by him as per Ext.A4, assignment deed of the year 1947. Contention raised by the appellant is that respondent No.1 purchased 4 cents out of a total extent described as 51cents, remaining property was acquired by the appellant in the year 1956 but on measurement total extent was found to be only 44 cents and hence there should be a proportionate reduction in the extent of the property which respondent No.1 purchased as per Ext.A4. According to respondent No.1, it is after Ext.A4, assignment deed regarding the 4 cents in his favour that appellant acquired the remaining extent of property and hence only what remained with the vendor after assignment of 4 cents to respondent No.1 alone was available to the appellant. Courts below accepted the contention of respondent No.1 and granted relief. 2. In the affidavit in support of the application it is stated that copy of judgment and decree of the first appellate court was obtained by the appellant on 27-09-2004, the same appeared to have been entrusted with its counsel for preparation of second appeal during December, 2004 itself but, counsel appears to have asked for the back records to prepare the appeal memorandum. The records could not be made available to the counsel as the same were not taken from the advocate of appellant in the trial court. While so, the then Secretary of Panchayath was transferred on 19-10-2006. Thereafter one Vilasini assumed charge as Secretary. She was transferred during 2007. After the present incumbent assumed office she made enquiries about the matter and learned that the second appeal had not been filed. Hence the delay. 3. The application is opposed by respondent No.1 on the ground that there is no merit, substance or bonafides in the application and that delay is not properly explained. It is contended that in the year 2006 while the decree under challenge was put in execution the then Secretary of appellant had filed an affidavit stating that appeal has already been filed in this court which according to the learned counsel indicated lack of bonafides in the present application. 4. It is true that appellant is a local authority and hence, its machinery has to move for arranging to prefer a second appeal. It may have to obtain sanction from the authority concerned. But, delay involved in this case is of 1096 days. Question is whether that delay is sufficiently explained and whether, appellant was prevented by sufficient cause from not filing the appeal on time. What is stated in the affidavit is only that the advocate with whom the records had been entrusted for filing the second appeal wanted the back records also for that purpose. But, it is not stated why the back records was not made available to the advocate concerned on time. It appears that the authorities concerned slept over the matter for quite some time and only after execution proceedings started, they woke up and thought of filing the second appeal. On going through the affidavit of appellant I do not find any merit or substance in the ground stated therein. I am not satisfied that appellant was prevented by sufficient cause from filing the second appeal on time. Resultantly application fails. It is dismissed. THOMAS P JOSEPH, JUDGE Sbna/ THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.38 of 2008 --------------------------------------- Dated this 07th day of October 2009 JUDGMENT C.M.Appl.No.33 of 2008 to condone the delay in filing the RSA has been dismissed. Hence the second appeal is dismissed as barred by limitation without any order as to cost. THOMAS P JOSEPH, JUDGE Sbna/