IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 RSA.No. 146 of 2009() --------------------- AS.106/1999 of ADDL.SUB COURT, IRINJALAKUDA OS.816/1997 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------------- PURUSHAN, S/O.BLAGAYIL NAAMBALI, AZHEEKODE VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ SRI.M.M.SALIM RESPONDENT/RESPONDENT/DEFENDANT: ----------------------------------------------- BABY, W/O.CHETTIYARA VELAYUDHAN, AZHEEKODE VILLAGE AND P.O., KODUNGALLUR TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- C.M.Appl.No.104 of 2009 in R.S.A.No.146 of 2009 --------------------------------------- Dated this 18th day of September 2009 ORDER This application is to condone the delay of 1521 days in filing the second appeal. 2. Plaintiff who lost his suit for specific performance of an agreement for sale or in the alternative for recovery of advance money preferred A.S.No.106 of 1999 in the court of learned Additional Sub Judge, Irinjalakuda. That appeal was dismissed for default on 13-07- 2004. Hence the second appeal with an application to condone the delay. 3. Dismissal of the appeal for default does not amount to a 'decree' and hence no second appeal would lie. Learned counsel for appellant requested that appellant may be permitted to withdraw C.M.Appl.No.104 of 2009 and the second appeal without prejudice to the right of the appellant to challenge the dismissal of the application for restoration of the appeal. In the facts and circumstances of the case C.M.Appl.No.104 of 2009 is dismissed as withdrawn. THOMAS P JOSEPH, JUDGE Sbna/ THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.146 of 2009 --------------------------------------- Dated this 18th day of September 2009 JUDGMENT In view of the order passed in C.M.Appl.No.104 of 2009 appeal is dismissed as withdrawn without prejudice to the right if any, of the appellant to challenge dismissal of the application for restoration of the first appeal. THOMAS P JOSEPH, JUDGE Sbna/