IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 RSA.No. 1245 of 2009() ---------------------- AS.177/2009 of DISTRICT COURT,KOZHIKODE OS.687/1996 of PRL.MUNSIFF'S COURT II, KOZHIKODE .................... APPELLANT/APPELLANT/RESPONDENT-DEFENDANT: ---------------------------------------------------------------------------------- N.V.BALAN, AGED 74 YEARS, S/O.LATE APPU, RESIDING AT BUNGLAW PARAMBU, PANNIYANKARA AMSOM DESOM, KOZHIKODE. BY ADVS. SRI.A.BALAGOPALAN, SRI.A.RAJAGOPALAN, SRI.IMTHIYAZ AHAMED, SRI.K.SANEESH KUMAR. RESPONDENT(S): RESPONDENT/RESPONDENT-PLAINTIFF: ---------------------------------------------------------------------------------------- N.V.SREEDHARAN, AGED 62 YEARS, S/O.LATE APPU, RESIDING AT BUNGLAW PARAMBU, PANNIYANKARA AMSOM, DESOM, KOZHIKODE. R1 BY ADVS. SRI.T.SETHUMADHAVAN, SRI.PUSHPARAJAN KODOTH, SRI.K.JAYESH MOHANKUMAR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- RSA No.1245 of 2009-F ------------------------------------- Dated 28th June 2010 Judgment The respondent in F.D.I.A. No.2047/07 in OS No.687/96 before the Principal Munsiff's Court-II, Kozhikode, is the appellant herein. 2. OS No.687/96 was a suit for partition, in which a preliminary decree was passed. The plaintiff filed an application for passing the final decree. A Commissioner was deputed and a report and plan were obtained. The Trial Court passed the final decree, accepting the Commissioner's report and plan, to which no objection seems to have been taken by the parties. Feeling aggrieved by the order passed by the Munsiff's Court in F.D.I.A.No.2047/07, the defendant filed an appeal before the lower Appellate Court. Since the appeal was not filed within time, a petition to condone the delay was also filed. The court below was not inclined to accept the RSA 1245/09 2 reasons for the delay and dismissed the petitioner for delay condonation. Consequently, the appeal was also dismissed. The said order is assailed in this appeal. 3. The learned counsel for the appellant pointed out that the court below was not justified in dismissing the delay condonation petition as serious issues were raised in the appeal and cogent reasons were given for condoning the delay. It is also pointed out that serious hardships are caused to the appellant by the final decree now passed, which has been passed without taking note of the objections filed by the appellant herein. 4. The respondent appeared on notice issued from this Court. It is pointed out that the petitioner before the Trial Court had filed certain statements. No objections were filed against the Commissioner's report and the final decree happened to be passed, accepting the report and plan. 5. On going through the records, it is found that the Trial Court passed the final decree, on the basis of the RSA 1245/09 3 submissions made by both sides and accepting the statements said to have been made by the petitioner before the Trial Court. The contention now taken by the appellant is that it was based on the unilateral statement of the respondent therein that the final decree was passed and he has got serious objections regarding the Commissioner's report. 6. If as a matter of fact, he had any objection to any of the statements made in the Trial Court and if he has a case that the facts stated therein are untrue, his remedy was to seek review of the order passed by the Trial Court. The learned counsel on both sides had submitted before the Trial Court that the final decree can be passed in terms of the Commissioner's report and plan. It is also seen that the petitioner before the Trial Court had filed two objections. The court below is seen to have accepted the statements made by the counsel on both sides. Whatever that be, the proper remedy available to the petitioner was to seek review of the order. Reserving the liberty of the RSA 1245/09 4 appellant to approach the Trial Court seeking review, confirming the present order passed by the lower Appellate Court, this Second Appeal is dismissed. P.BHAVADASAN, JUDGE sta RSA 1245/09 5