IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 RSA.No. 200 of 2010() --------------------- IA NO.1280/2009 IN AS NO.197/2008 OF SUB JUDGE, NEYYATTINKARA IA NOS.1395/1998 & 3548/1996 IN OS NO.118/1979 OF PRINCIPAL MUNISS, NEYYATTINKARA. APPELLANT/COUNTER PETITIONER/APPELLANT/8TH DEFENDANT: ---------------------------------------------------------------------- AVEL EENOSE, KARTHIKAPALLI VEEDU, MARUTHATHOOR DESOM, NEYYATTINKARA. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENTS/DEFENDANT NOS.1, 3, 4 AND 6: -------------------------------------------------------------- 1. JOSEPH NADAR RAJAYYAN, KALANDARAVILA PUTHEN VEEDU, MARUTHOOR DESOM, NEYYATTINKARA. 2. JOSEPH SELVARAJ, KALANDARAVILA PUTHEN VEEDU, MARUTHOOR DESOM, NEYYATTINKARA. 3. JOSEPH THANKAYYAN @ RAJAMANI, KALANDARAVILA PUTHEN VEEDU, MARUTHOOR DESOM, NEYYATTINKARA. 4. JOSEPH THANKARAJAN, KALANDARAVILA PUTHEN VEEDU, MARUTHOOR DESOM, NEYYATTINKARA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.200 of 2010 -------------------------------------- Dated this the 4th day of March, 2010. JUDGMENT This appeal arises from judgment and decree of learned Sub Judge, Neyyattinkara in A.S.No.197 of 2008 dismissing the appeal as barred by limitation consequent to the order passed on I.A.No.1280 of 2009. Defendant No.8 in the court of learned Principal Munsiff, Neyyattinkara who is the appellant before the first appellate court has come up with this Second Appeal. 2. A final decree for partition was passed by the learned Munsiff on 28.10.2006. Defendant No.8, aggrieved by that final decree preferred A.S.No.197 of 2008 before the first appellate court challenging the final decree on various grounds. Appeal was admitted and there was an order of interim stay as well. Contesting respondents filed I.A.No.1280 of 2009 to dismiss the appeal as time barred contending that there is no application to condone the delay in filing the appeal. That application was resisted by the appellant. First appellate court heard the application, concluded that the appeal is barred by limitation and accordingly allowed I.A.No.1280 of 2009. Consequence was dismissal of A.S.No.197 of 2008. That judgment and decree are under challenge in this Second Appeal urging by way of substantial questions of law whether the finding of the first appellate court regarding limitation is perverse, whether the finding is legally sustainable and whether the appeal could have been preferred only RSA No.200/2010 2 against the final decree passed by the trial court. Learned counsel for appellant contends that finding of the first appellate court that the appeal is barred by limitation is not correct and is made without reference to the facts involved. It is contended that at any rate, before the final decree was engrossed on non- judicial stamp papers (NJS) and a copy of the decree was issued to the appellant he could not have validly sustained an appeal against the final decree. 3. It is not disputed that the trial court allowed the application for passing final decree on 28.10.2006. According to the appellant, he filed an application for copy of final decree and judgment on 4.11.2006 (as per No.A.2510/2006). But that application was returned on 22.1.2008 for the reason that final decree was not engrossed on NJS. According to the appellant, he lost that application in the office and later filed another application before the same court on 23.10.2008 for copy of judgment and final decree. On getting that copy on 1.12.2008 he preferred the appeal on time. Thus according to the appellant appeal was preferred on time. First appellate court has taken the view that application for copy of judgment and decree ought to have been filed immediately after the final decree was passed, period of limitation began to run from the date of passing the final decree and not from date of its engrossing on NJS and hence the appeal is barred by limitation. It is the view of the first appellate court that appellant ought to have obtained a copy of the judgment and preferred the appeal on time. RSA No.200/2010 3 4. On the question whether a copy of the final decree after it is engrossed on NJS is essential to prefer an appeal or the appeal is sustainable from the copy of the order on application for passing final decree, there can no more doubt in view of the decision of the Division Bench of this Court in Janardhanan v. Chandramathy (1996(2) KLT 545) where it has been authoritatively held that even the order passed on the application to pass final decree can be treated as final decree for the purpose of an appeal. As such first appellate court is justified in observing that appellant could have applied for, obtained a copy of the order on the application for passing the final decree and preferred the appeal with the said order. 5. Then the question is whether appeal was presented beyond the period of limitation prescribed and at any rate, appellant is entitled to exclusion under Section 12(1) of the Limitation Act (for short, “the Act”). Though it is the case of the appellant that the application preferred by him on 4.11.2006 for the copy of judgment and final decree was returned for the reason that since the plaintiff had not produced NJS the decree could not be engrossed on the stamp paper, that application is not before the court of course according to the appellant,as it was lost in his office. Assuming that application for copy of judgment and final decree was returned, atleast so far as it concerned the application for issue copy of the judgment, the order suffered from an illegality which the appellant ought to have challenged in appropriate proceedings. True, learned counsel for the appellant has a contention that the said order could not be challenged as of right. It is the contention of the learned counsel that the RSA No.200/2010 4 correctness of that order returning the application for copy could be challenged in the appeal presented before the first appellate court. I am afraid that neither of the contentions upheld. Assuming that there is no vested right conferred on the appellant to challenge the order returning the application for certified copy of the judgment and decree, it is not as if appellant could not have challenged that order in this Court invoking Article 227 of the Constitution. Nor is it possible for the appellant to contest correctness of the order returning the application for copy of judgment and decree in the course of appeal preferred before the first appellate court, for, in my view order returning the application does not in any way affect the correctness or legality of the final decree and judgment and hence is not a matter which could be raised in an appeal before the first appellate court, under Section 105(2) of the Code of Civil Procedure. At any rate, if at all the application for issue of copy of judgment and decree was returned, that application ought to have been re-presented so that the date of filing of the application would relate to the date of its first presentation. In this case it is not disputed that a fresh application for copy of the judgment and final decree was preferred on 23.10.2008 much after the period prescribed for preferring an appeal before the first appellate court had expired. 6. This Court in Shyamala v. Vasudevan (1995 (1) KLT 573) referring to the scope of Section 12(1) of the Act has stated that a person cannot get exclusion of the period that elapsed between pronouncement of the judgment and signing of the decree if he made an application for a copy only after preparation of the decree. The benefit of exclusion under that provision is RSA No.200/2010 5 available only to the party who made the application for copy on pronouncement of the judgment and before the preparation of the decree. That principle applied with all vehemence to the facts of the case involved. I stated that according to the appellant he had already made an application which was returned. I also referred to the fate of that application and how that application cannot be reckoned to hold that the appellant is entitled to the exclusion under Section 12 (1) of the Act. If that be so the remedy of the appellant was to file an application to condone the delay under Section 5 of the Act while preferring the appeal before the first appellate court. I do not forget that the first appellate court had admitted the appeal at a time when that court was not told about the period of limitation and a stay also was granted but that does not make an appeal as a validly presented one. An appeal which is barred by limitation can be said to be validly presented only if it is accompanied an application to condone the delay. That has not happened in this case. Assuming that the appellant was under the impression that the appeal was presented on time, atleast after the contesting respondents filed I.A.No.1280 of 2009 stating that the appeal is barred by limitation for the reasons stated above, appellant ought to have filed an application to condone the delay which also he did not do. In such a situation I am unable to disagree with the view taken by the first appellate court that appeal is barred by limitation. Since the appellant had sufficient time to file an application to condone the delay if necessary after the contesting respondents filed I.A.No.1280 of 2009 and that also was not done, I do not think that it was necessary for the first appellate court to return the appeal for presentation with an application to condone the delay. Judgment and decree of the first appellate RSA No.200/2010 6 court cannot be said to be illegal. On hearing learned counsel for appellant and going through the judgment under challenge I am not satisfied in view of the decisions of this Court which I have referred supra settling the questions raised in this appeal that any substantial question of law survives for a decision. Accordingly, this appeal is dismissed in limine. I.A.No.493 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks