IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 CRP.No. 401 of 2009() --------------------------------- IA.874/2005 of SUB COURT,ATTINGAL OS.109/2000 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): PETITIONER/APPELLANT ----------------------------------------------------------- JANAMMA D/O. KUNJULEKSHMI, KARUNALAYAM, VENKULAM, EDAVA (RESIDENT OF MATHUVILAKOM, KAPPIL P.O., EDAVA.). BY ADV. SRI.SUBHASH CYRIAC RESPONDENT(S): RESPONDENT/RESPONDENTS ---------------------------------------------------------------------- 1. LEELA BAI, SOMA SADANAM, KOLLAM DISTRICT. 2. SILVIYA, SOMA SADANAM, MAYYANAD, KOLLAM DISTRICT. 3. SHEEJA SHAJI, SOMA SADANAM, MAYYANAD, KOLLAM DISTRICT. R1 TO R3 BY ADVS. SRI.R.S.KALKURA , SRI.HARISH GOPINATH, SRI.V.VINAY MENON, SRI.M.AJAY (IRUMPANAM). THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== C.R.P. No.401 of 2009 ==================================== Dated this the 28th day of October, 2011 O R D E R Challenge is to the order dated 25.10.2007 of the court of learned Sub Judge, Attingal on I.A. No.874 of 2005 (in an unnumbered appeal). That appeal has arisen from the judgment and decree in O.S. No.109 of 2000 of the court of learned Munsiff, Attingal. That was a suit for recovery of value of improvements filed by the petitioner on the strength of a Will (allegedly) executed by her mother in respect of the suit property. According to the petitioner, the said property was taken on lease by her mother in the year 1129ME and she made improvements. While so in the year, 1965 the owner of the property gifted the property to the respondents based on which respondents obtained a decree for recovery of possession of property against mother of petitioner. Thereafter the mother is said to have executed the Will in favour of the petitioner allowing her to recover the value of improvements stated to be effected by the mother in the said property. The suit was dismissed against which petitioner preferred an appeal. Appeal was not numbered since it was accompanied by I.A. No.874 of 2005 to condone the delay of 610 C.R.P. No.401 of 2009 -: 2 :- days. That application was opposed by the respondents. Learned Sub Judge by the impugned order dismissed the application holding that the delay is not explained. The said order is under challenge. 2. Learned counsel submitted that consequent to the dismissal of the application to condone the delay the appeal has not been dismissed and hence petitioner has chosen to challenge the order on I.A. No.874 of 2005 by way of this Civil Revision. 3. Learned counsel for respondents would contend that the appeal was not even numbered on account of the delay and after dismissal of I.A. No.874 of 2005 there was no posting also for the appeal. According to the learned counsel since the appeal was not numbered it was not necessary to dismiss the appeal. 4. I need not go into that controversy on the basis of the dispute between the parties as to whether the appeal was dismissed or not. Now I am concerned with the correctness of the impugned order. 5. Appeal was preferred with a delay of 610 days. Reason for the delay stated is that petitioner was staying in Singapore during the relevant time and the trial court dismissed C.R.P. No.401 of 2009 -: 3 :- the suit on 23.06.2003. Petitioner went to Singapore on 19.07.2003 after engaging the counsel to prefer an appeal. She came back with certain ailments on 27.11.2003 and after completing treatment went abroad on 10.08.2004 for knee replacement. Thereafter she returned to her native place only in the year, 2005. She then met the counsel and filed the appeal. 6. Learned counsel for respondents contended that suit itself was dismissed for default on 25.11.2006, later restored to file on the application of petitioner, evidence was recorded and it ended in a dismissal. According to learned counsel the attempt of petitioner is to some how drag on the litigation. 7. Learned Sub Judge found that the reasons stated for condonation of delay are not sufficient. It is not as if petitioner was unaware of dismissal of the suit on 23.06.2003. For, she is said to have left the place on 19.07.2003 and come back to her native place on 27.11.2003. Still the appeal is filed only in the year 2005. In the meantime she is said to have gone back to Singapore. It is difficult to think that during the time she was at her native place till 10.08.2004, she could not contact her counsel and ascertain whether the appeal had been preferred. It is not as if any explanation given is to be accepted as gospel C.R.P. No.401 of 2009 -: 4 :- truth and the delay condoned. The law can protect only the vigilant. Somebody who is sleeping over his rights cannot get the advantage of law. I am not inclined to think that the learned Sub Judge was not correct in holding that the delay is not explained. A further fact which I must bear in mind is that even the Civil Revision was filed after ten days of the prescribed time (though that this Court was inclined to condone delay as per order dated 14.03.2011). I do not find reason to interfere with the impugned order. Civil Revision is dismissed. All pending Interlocutory Applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv