IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 RSA.No. 474 of 2010() --------------------- AS.236/2000 of I ADDL. DISTRICT COURT, PALAKKAD OS.70/1999 of MUNSIFF COURT, ALATHUR .................... APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------- SARFUDEEN, S/O. HANEEFA RAWTHER, AGED 43 YEARS, RESIDING AT KAMBRATHUCHALLA, MUTHALAMADA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ------------------------- 1. SALUDEEN, S/O. YAKUB ROWTHER, AGED 45 YEARS, RESIDING AT MUTHALAMADA AMSOM,CHITTUR TALUK, PALAKKAD DIST. 2. HAMEEDA,D/O. YAKUB ROWTHER, AGED 43 YEARS, RESIDING AT MUTHALAMADA AMSOM,CHITTUR TALUK, PALAKKAD DIST. 3. ALAVUDEEN, S/O. YAKUB ROWTHER, AGED 44 YEARS, RESIDING AT MUTHALAMADA AMSOM,CHITTUR TALUK, PALAKKAD DIST. 4. RABIA, D/O. YAKUB ROWTHER, AGED 42 YEARS, RESIDING AT MUTHALAMADA AMSOM,CHITTUR TALUK, PALAKKAD DIST. 5. MUJEEB RAHMAN, S/O. YAKUB ROWTHER, AGED 37 YEARS, RESIDING AT MUTHALAMADA AMSOM,CHITTUR TALUK, PALAKKAD DIST. R.S.A.NO.474/2010 6. SAMSUDEEN, S/O. YAKUB ROWTHER, AGED 33 YEARS, RESIDING AT MUTHALAMADA AMSOM,CHITTUR TALUK, PALAKKAD DIST. 7. SHAHARBANU, D/O. YAKUB ROWTHER, AGED 38 YEARS, RESIDING AT MUTHALAMADA AMSOM,CHITTUR TALUK, PALAKKAD DIST. 8. SAHABUDEEN, S/O. SADAR ROWTHER, AGED 44 YEARS, RESIDING AT POTHAMPADAM, KULATHUMEDU, RESIDING MUTHALAMAD AMSOM, CHITTUR TALUK, PALAKKAD DIST. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R8 SRI.T.C.SURESH MENON FOR R8 SRI.JIBU P THOMAS FOR R8 SRI.P.S.APPU FOR R8 SRI.C.A.ANOOP FOR R8 SRI.SAJAN VARGHEESE K. FOR R1 TO 6 SRI.LIJU. M.P FOR R1 TO 6 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.M.APPLN.NO.318 OF 2010 IN R.S.A.NO.474 OF 2010 & R.S.A.NO.474 OF 2010 (F) ----------------------------------- Dated this the 21st day of October, 2010 O R D E R The above application has been filed to condone the delay of 1669 days in filing the appeal, under Section 5 of the Limitation Act. 2. Petitioner is the plaintiff in O.S.No.70 of 1999 on the file of the Munsiff Court, Chittur. Suit was one for specific performance of an agreement of sale. The defendants 1 to 7 in that suit were the legal representatives of the previous owner with whom the plaintiff is alleged to have entered into an agreement of sale over the subject matter involved in the suit. A supplemental defendant, as defendant No.8, was also impleaded in the suit, since that defendant claimed of having an agreement of sale over the very same property with the previous owner. C.M.APPLN.NO.318 OF 2010 IN R.S.A.NO.474 OF 2010 2 & R.S.A.NO.474 OF 2010 (F) The trial court dismissed the suit, and it was confirmed in appeal, preferred by the appellant herein. Now the second appeal is preferred with the above petition seeking condonation of delay of more than four years. The 8th respondent has filed a counter resisting the petition for condonation of delay. With the counter, the above respondent has also produced copy of the judgment rendered in the second appeal in his suit, which was separately filed by him to enforce the agreement of sale, which he had with the previous owner, against his successors-in- interest. That suit was decreed in his favour, and the challenge raised against such decree upto the Apex Court had been turned down, is his case. It is submitted that after the disposal of the appeal under Annexure-A judgment, produced with the counter affidavit, and the dismissal of the SLP against the decision rendered by this Court, it is contended that through court, 8th respondent got a sale deed executed in his favour and later obtained delivery of the property as well. The present appellant, it is submitted, is a party to the suit instituted by the 8th C.M.APPLN.NO.318 OF 2010 IN R.S.A.NO.474 OF 2010 3 & R.S.A.NO.474 OF 2010 (F) respondent as plaintiff in which, after passing of the decree, sale deed was executed and delivery of property effected. In the given facts and circumstances of the case, the time barred second appeal moved after delivery of the property was handed over to the 8th respondent, which is not controverted, lacks any merit where it is shown that appellant was also a party in the suit of the 8th respondent. I find there is no merit in the cause pleaded for condonation of delay. Delay petition is dismissed. Consequently, appeal is also dismissed. S.S.SATHEESACHANDRAN JUDGE prp C.M.APPLN.NO.318 OF 2010 IN R.S.A.NO.474 OF 2010 4 & R.S.A.NO.474 OF 2010 (F)