IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 RSA.No. 1074 of 2008() ---------------------- AS.51/2000 of PRL.SUB COURT,TRIVANDRUM OS.896/1984 of III ADDL.MUNSIFF'S COURT, TRIVANDRUM .................... APPELLANTS:-(APPELLANTS IN THE COURT BELOW AND DEFENDANTS 1 & 3 IN THE TRIAL COURT): -------------------------------------------------------------------------- 1. KUTTAPPAN NADAR, MUTTATHERUVU PUTHUVAL PUTHEN VEEDU, RANDAMADA MURI, THIRUVANANTAPURAM. 2. SWARANAMMA, W/O.KUTTAN NADAR, OF DO... BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): (LEGAL REPRESENTATIVES OF DECEASED RESPONDENTS 1 & 2 SOUGHT TO BE IMPLEADED IN THE FIRST APPEAL STAGE: ---------------------------------------- LEGAL REPRESENTATIVE OF DECEASED R1 & R2 IN THE FIRST APPEAL: 1. AMBIKAVATHI, D/O. AMBUJAKSHI, AHALYA, KUTTIYAMMODU, NETTAYAM,KACHANI, THIRUVANANTHAPURAM. LEGAL REPRESENTATIVE OF DECEASED R1 IN THE FIRST APPEAL: 2. JOHN JOSEPH, S/O. JOSEPH DO...DO... 3. MANI, S/O. KUTTAN NADAR, IYYAKUZHI MELE PUTHEN VEEDU, NETTAYAM,THIRUVANANTHAPURAM. 4. VASANTHAKUMARI, D/O. AMBUJAKSHI DO...DO. 5. SAROJINI, D/O. AMBUJAKSHI, DO...DO... 6. SUKUMARI, OF DO....DO.... 7. USHA, D/O. AMBUJAKSHI, OF DO...DO... 8. VASANTHASENEN, OF DO... DO.. R1 & R2 BY ADVS. SRI.L.MOHANAN, SRI.D.SAJEEV. R4,R7 BY ADV.SRI.K.S.MANU (PUNUKKONNOOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- R.S.A No.1074 of 2008 -------------------------- Dated this the 2nd June, 2010 J U D G M E N T Appellants are the defendants 1 and 3 in O.S. No.896/1984 before the Munsiff's Court, Trivandrum. Parties hereinafter referred to as are available before the trial court. 2. The suit was one for redemption. Defendants resisted the suit. The judgment an decree is dated 30.7.1997. Decree was passed in the followings terms. "In the result, suit is decreed allowing the redemption of the plaint schedule property from the possession of the defendants. The plaintiff is liable to pay Rs.1100/- as mortgage money, Rs.1004.40 paise as value of improvements and Rs.578/- as damages. The plaintiff is directed to pay the amount directly to the defendant if they are willing to accept the amount and handed over possession and a relevant document with respect to the plaint schedule property. If the defendants are not amenable the plaintiff can deposit the above said amount in court within three months and execute the decree after paying the court fee. Considering the circumstances the parties are directed to bear their respective costs." 3. Defendants carried the matter in appeal as A.S. 51/2000 before the Sub Court, Trivandrum. It is so R.S.A No.1074 of 2008 2 happened that respondents died during the pendency of the appeal. Petitions for impleadment, petition for abatement and condonation of appeal were filed by the appellants before the lower appellate court. The lower appellate court found that there was considerable delay in filing the applications and there was no justification for the delay. Petitions were dismissed. Consequently, the appeal was dismissed as abated. It is against the said judgment and decree the present appeal has been filed before this Court. 4. It is submitted that in pursuance of the judgment decree of the trial court the property had already been taken possession of by the respondents. 5. Learned counsel appearing for the appellants only prayed that appeal may be directed to be heard on merits so that there will be proper adjudication of the rights of the parties. It is only just and proper that an opportunity be given to the appellants to have the appeal heard on merits. But the fact remains that there was delay in impleading the legal heirs of the respondents R.S.A No.1074 of 2008 3 which is not justifiable. At any rate, no injury or loss is caused to the plaintiffs. In the result, this appeal is allowed. The impugned order is set aside and the lower court is directed to take up the matter and dispose it of merits after allowing the petitions for impleading, setting aside the abatement and condonation of delay, on condition that the appellants pay a sum of Rs.1500/- to the counsel for the respondents within one month from today. The lower court may take every endeavour to dispose of the appeal, within six months from the date of receipt of a copy of this judgment. P.BHAVADASAN, JUDGE ma R.S.A No.1074 of 2008 4 R.S.A No.1074 of 2008 5