IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 RSA.No. 315 of 2010() --------------------- AS.234/2009 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.137/2007 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------ GOWRIKUTTY, CHUZHALIKKAL VADAKKETHIL, EDAKKUNNAM MURI, NOORANADU VILLAGE. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT/RESPONDENT/PLAINTIFF: -------------------------------- N.K.BABU,S/O.NARAYANAN,KALATHIVILAYIL, EDAKUNNAM MURI,NOORANADU VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.315 of 2010 -------------------------------------- Dated this the 22nd day of March, 2010. JUDGMENT This appeal arises from judgment and decree of learned Additional District Judge-II, Mavelikkara in A.S.No.234 of 2009 dismissing the appeal as time barred consequent to dismissal of I.A.No.1170 of 2009 for condonation of delay of 475 days in preferring appeal. Respondent sued the appellant for recovery of money based on Ext.A1, demand promissory note and alleging that in spite of demand for repayment of the amount as per Ext.A2, notice appellant did not pay the amount. Appellant contested the suit denying that she had any transaction with respondent. When the case came up for trial in the list appellant's counsel in the trial court filed an application (I.A.No.1383 of 2008) for adjournment of the case. That application was dismissed. Respondent had filed affidavit in lieu of chief examination whereby Exts.A1 to A4 were marked. He was not cross examined by counsel for appellant. Learned Munsiff, relying on the uncontroverted chief affidavit of respondent and Exts.A1 to A4 granted a decree for recovery of money as prayed for. That judgment and decree were challenged in A.S.No.234 of of 2009 and since there was a delay of 457 days in preferring the appeal, appellant filed I.A.No.1170 of 2009 contending that she did not get timely information regarding the listing of suit or even its disposal. She got information about disposal of the suit only when she got notice on the execution petition. That application was resisted by the respondent contending RSA No.315/2010 2 that appellant was aware of the listing of the case and disposal of the suit even before notice on the execution petition was served on her. In proof respondent produced Exts.B1 to B3. Learned Additional District Judge referred to Exts.B1 to B3, found that appellant did not challenge correctness of the factual statements therein and dismissed I.A.No.1170 of 2009. Consequently the appeal was dismissed which followed a decree. That judgment and decree are under challenge in this appeal raising by way of substantial questions of law whether first appellate court was justified in dismissing the appeal as time barred and whether first appellate court was correct in taking the view that Exts.B1 to B3, proceedings were filed by the counsel with the knowledge of appellant. Learned counsel has raised a contention that since the question whether, when the appeal is dismissed as time barred consequent to dismissal of an application to condone the delay the doctrine of merger will apply has been referred to the Division Bench in Raman Gopi v. Kunju Raman Uthaman (2009 (4) KLT 414) in view of the conflict of decisions in Chandi Prasad v. Jagadish Prasad (2004 (3) KLT 654 - SC) and Shyam Sundar Sarma v. Panna Lal Jaiswal (2005 (1) KLT 198 - SC) and the Division Bench is yet to answer the reference, this case may be kept pending. 2. So far as maintainability of Second Appeal on the judgment and decree under challenge where the appeal was dismissed consequent to refusal to condone the delay is concerned Supreme Court in Shyam Sundar Sarma's case (supra) has held that when the appeal is dismissed consequent RSA No.315/2010 3 to the dismissal of an application to condone the delay it is a decision in the appeal and is in effect and substance a confirmation of the decree appealed against. That decision is in favour of the maintainability of the appeal against judgment and decree of the first appellate court even when the appeal is dismissed as time barred. The Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958) has held that where there is an apparent conflict between an earlier and a later decision of the Supreme Court by Benches of co-equal strength, the later decision will be binding. That part, as held in Kannappan v. R.T.O., Ernakulam (1988 (1) KLT 902) an order of reference does not decide the rights of parties. It may contain tentative views of the learned Judge making the reference but not the final conclusions. Therefore for the mere reason of reference and the matter having not been decided by the Division Bench it is not necessary to wait until the decision of the Division Bench comes. The matter has to be decided with reference to the law which now prevails and is binding. 3. So far the substantial questions of law raised are concerned though it is the case of appellant that she got information of the listing of the case and dismissal of the suit only on getting notice on the execution petition, it is seen from Ext.B1 that an application was preferred by the appellant on 4.7.2008 in the trial court (the case was listed for trial on 10.7.2008) to receive documents on her side. Ext.B2 shows that on 26.7.20908 appellant preferred an application to set aside the ex parte judgment and decree supported by her RSA No.315/2010 4 affidavit. Ext.B3 is the copy of objection filed by the respondent to Ext.B2, application. When respondent raised such a contention appellant claimed that her counsel had filed Exts.B1 and B2, applications making use of the papers signed by her earlier. I am afraid no such inference could be drawn. Exts.B1 and B2 are filed on behalf of the appellant and should be presumed to be as per her instruction and with her knowledge and more so, when Ext.B2 is supported by the affidavit of the appellant. The Supreme Court has held in Pundlik J. Patil v. Executive Engineer (2009 (1) KLT SN 25 (Case No.26)) that when the reasons stated for condonation of delay itself is found to be incorrect, that itself justified rejection of the application. As such first appellate court was justified in not allowing the application to condone the delay and consequently dismissing the appeal also. No substantial question of law is involved in this appeal requiring a decision. Accordingly appeal is dismissed in limine. I.A.No.803 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks