IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 RFA.No. 227 of 2011() --------------------- OS.393/2009 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/DEFENDANT. ---------------------------------------- BEENA, AGED 49 YEARS, D/O. KUNJAPPAN, THATTASSERY, KURISHUPALLY ROAD, PERUMANOOR P.O., ERNAKULAM. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT(S): PLAINTIFF. ------------------------- BABU N.D., AGED 55 YEARS, S/O. DAMODARAN, NAPPADI HOUSE, 38/2198 A, K.K.ROAD, KALOOR P.O., KOCHI - 682 017. BY ADV. SRI.S.P.CHALY THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P.S.GOPINATHAN, JJ. ----------------------------------- C.M.Appln.566 OF 2011 & R.F.A.No.227 OF 2011 ------------------------------------ Dated this the 24th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.C.M.Appln.566/11 is filed seeking condonation of delay of 180 days in filing appeal against a decree for return of advance under a contract for sale. The defendant has admitted in the written statement that the amount was received. There was no legal ground for her to justify the refusal to return the advance. This Court, after hearing the learned counsel for the parties, minuted on 20.6.2011 that certain further submissions have to be made, if we are to consider the question of condonation of delay. It is rightly pointed out that nothing worthwhile could be argued in favour of the appellant. With this, we find that the reason advanced for condoning the delay is that the appellant was left under the impression that the counsel would inform her RFA.227/11 2 of the availability of the certified copy. We are not satisfied that due diligence was exercised by the appellant for prosecuting this appeal by receiving certified copy of the decree and judgment in time. We are also satisfied that no useful purpose will be served in favour of the appellant, if we have, ultimately, to admit the appeal which will cause payment of a further amount of court fee apart from the amount of around Rs.31,000/- already paid. We therefore, direct that out of the decree amount, the appellant shall pay an amount of Rs.1 lakh within one month. By way of indulgence by the decree holder, the defendant is given a further three months' period after such payment for satisfying the remaining portion of the decree. Recording this, the petition for condonation of delay is dismissed. 2.As a consequence of the dismissal of the petition for condonation of delay, the appeal will stand rejected. Refund court fee paid on the appeal memorandum. RFA.227/11 3 3.We clarify that on production of the copy of this judgment, the executing court will adjourn the proceedings for a period of one month from now to record whether an amount of Rs.1 lakh has been paid and if such amount has been paid, it would further adjourn the matter by another three months for recording payment of the balance amount. If any of the amounts is not paid, the executing court will immediately proceed with the execution proceedings. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.S.GOPINATHAN, Judge. kkb.25/6.