IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 RSA.No. 67 of 2009() -------------------- AGAINST THE ORDER DATED 30/09/2008 IN IA 109/08 IN AS.21/2008 of DISTRICT COURT, PATHANAMTHITTA OS.303/1990 of M.C.,PATHANAMTHITTA .................... APPELLANTS:APPELLANT/2ND DEFENDANT & LEGAL REPRESENTATIVES OF 1ST DEFENDANT IN THE SUIT -------------------------------------------------------------------------- 1. CHELLAMMA, W/O.LATE SANKARA PILLAI AGED 80, KADANJILIKADU HOUSE, NARANGANAM MURI, NARANGANAM VILLAGE 2. S.RADHAKRISHNAN, S/O.LATE SANKARA PILLAI AGED 58, KADANJILIKADU HOUSE, NARANGANAM MURI, NARANGANAM VILLAGE. 3. S.SIVARAMAN, S/O.LATE SANKARA PILLAI, AGED 55 KADANJILIKADU HOUSE, NARANGANAM MURI, NARANGANAM VILLAGE. 4. S.SASI, S./O.LATE SANKARA PILLAI, AGED 47, KADANJILIKADU HOUSE, NARANGANAM MURI, NARANGANAM VILLAGE. 5. S.MOHANAN, S/O.LATE SANKARA PILLAI AGED 44, KADANJILIKADU HOUSE, NARANGANAM MURI, NARANGANAM VILLAGE. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENTS/RESPONDOENTS/PLAINTIFF ------------------------------------------------------------------ NARAYANA PILLAI, S/O PARAMESWARAN PILLAI, AGED ABOUT 73, KADANJILIKADU HOUSE, NARANGANAM MURI, NARANGANAM VILLAGE RESIDING AT KAVUMPURATHU HOUSE, CHERUMUKHU KURI NOORANADU VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.67 of 2009 ---------------------------------------- Dated this the 27th day of July, 2009 JUDGMENT The Second Appeal is directed against the order in I.A. No. 109/2008 in A.S. No. 21 of 2008 on the file of the District Court, Pathanamthitta which arises from the judgment and decree in O.S. No. 303 of 1990 on the file of the Munsiff's Court, Pathanamthitta. The suit was filed by the respondent herein as plaintiff for partition and redemption of mortgage. The suit was decreed by the trial court and the prayer for partition and redemption was allowed. 2. The contesting defendants filed appeal with a petition to condone the delay of 7 years 2 months and 23 days in filing that appeal. The lower appellate court considered the delay condonation petition and dismissed the same stating that there are no sufficient grounds made out for condoning the delay. Consequently the appeal was also dismissed . Hence the second appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 3. The trial court decree was passed on 17.10.2000. The appeal was filed with a petition to condone the delay of 7 years 2 months and 23 days. The defendants are husband and wife. The suit was contested by both defendants. It is evident from the facts and records that the 1st defendant died on 17.12.2006 and that till the date of death of the 1st defendant i.e nearly for 6 ½ years, the contesting defendants did not file the appeal. They applied for the certified copy of the judgment in O.S. No. R.S.A. No. 67 of 2009 -2- 303/1990 only on 3.12.2007 The lower appellate court found that the e is neither satisfactory explanation nor any sufficient cause is stated in their application for condoning the delay. Therefore the lower appellate court rightly dismissed the delay condonation petition and the appeal. 4. I have also examined the order passed by the lower appellate court. Herein the delay is inordinate. Since the appeal is hopelessly barred there is no justification at all for the contesting defendants in approaching the lower appellate court . I am of the view that the 2nd defendant ought to have appealed against the trial court's judgment within a reasonable time limit being a contesting party to the suit. Apparently the 2nd defendant is very reckless in preferring the appeal belatedly. The death of the 1st defendant has nothing to do in preferring the appeal in time because he died in the year 2006 i.e nearly 6 ½ years from the date of passing of the trial court's decree. 5. I have gone through the facts and circumstances of the case. The plaintiff and 1st defendant are brothers. The 2nd defendant is the wife of the 1st defendant. Admittedly the plaint schedule property belonged to the father of the plaintiff and 1st defendant,viz. Parameswaran pillai (mortgagor) The Said Parameswaran Pillai executed a mortgage deed in favour on one Govindakurup and the said Govindakurup was the mortgagee of the plaint schedule property. The said mortgage right was R.S.A. No. 67 of 2009 -3- transferred to the 2nd defendant in 1964. After the death of the mortgagor in 1968 the title over the plaint schedule property was devolved on the plaintiff and the 1st defendant equally by devolution. So they are having the right to redeem the mortgage and acquire possession of the plaint schedule property either jointly or separately. Since the property is in the possession of the 2nd defendant , the 1st defendant is not willing for the redemption of the mortgage. In the said circumstance the suit for partition and redemption of mortgage was filed .The trial court found that admittedly the 1st defendant is in joint possession of the entire plaint schedule property with the 2nd defendant who is none other than his wife, no question of redemption of mortgage for the share of 1st defendant in the plaint schedule property arises .The trial court also concluded that the plaintiff is entitled to get the partition and separate possession over one half share in the plaint schedule property and to redeem the mortgage of his one half share by depositing the one half value of mortgage money. Going by the facts and circumstances of the case the only conclusion that can be arrived at that the plaintiff is entitled for a decree as prayed for in the suit. I find that the decree and judgment passed by the trial court cannot be assailed for the reasons set out in appeal. The appeal is filed belatedly with a petition to condone the delay, the lower appellate court for valid reasons declined to condone the delay and R.S.A. No. 67 of 2009 -4- dismissed the appeal. I find no reasons to interfere with the order and judgment passed the courts below. No questions of law much less any substantial question of law arises for consideration in this appeal. There is also no scope for invoking Section 100 of the C.P.C. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 67 of 2009 ---------------------------- JUDGMENT 27th July, 2009