IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 RFA.No. 325 of 2008() --------------------- OS.233/1999 of C.J.M.,TRIVANDRUM .................... APPELLANT/DEFENDANT -------------------- ABDUL JABBAR SALIM, S/O.ABDUL JABBAR, RESIDING AT T.C.49/638(1), M.R.W.A. NO. 40, MANACAUD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.T.KRISHNANUNNI SRI.SAJU.S.A SRI.VINOD RAVINDRANATH RESPONDENTS: PLAINTIFF ---------------------- HASHIM, S/O.ABDUL RAHIMAN, RESIDING AT ANVAR MANZIL, KARAVARAM, PUTHUSSERI MUKKU P.O., KALLAMBALAM, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.G.SUDHEER ADV.SRI.VINOD RAVINDRANATH THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2115/2008 IN R.F.A.NO.325/2008 DISMISSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 28/08/2008 \\TRUE COPY// P.A to Judge P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - C.M.Appl.No.1002/08 & R.F.A. No. 325/2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of August, 2008. JUDGMENT Raman, J. C.M.Appl.No.1002/08 This is an application for condonation of delay of 2022 days in filing the appeal. An affidavit is filed in support of the application. It is averred that the suit is one for realisation of money filed as early as in 1999. The appellant/petitioner is the defendant in the suit. The judgment was rendered on 29.6.2002. The appeal ought to have been filed on 27.9.2002, but filed only in 2008. There is a delay of 2022 days in filing the appeal. According to the petitioner, he contacted his lawyer for filing the appeal. But his lawyer told him that large amount by way of court fee will have to be incurred for filing the appeal. Since he was not in a position to spend that amount during that period, he was advised that in the execution proceedings he can agree for sale of a portion of the property and the decree debt paid off. But that attempt failed. Steps were taken for execution of the decree and the residential building belonging to the petitioner was notified for sale in May 2008. The non-filing of the appeal is only due to the reason that he RFA 325/08 & C.M.Appl.No.1002/08 -2- could not make up the amount for payment of court fee. 2. In the counter affidavit filed by the respondent, it is averred that if at all the contention that the appellant had no sufficient funds to pay the court fee is true, nothing prevented him from filing the appeal as indigent and not to file the appeal after so many years. It is further averred that the appellant was working in a Gulf country and he is having a Fixed Deposit of Rs.25 lakhs in Indian Overseas Bank, Trivandrum Branch. The appellant has also conducted the marriage of his daughter spending huge amount of more than Rs.9 lakhs. He also placed reliance on the writ petition filed by the appellant/petitioner at the execution stage and it is only when he found that his attempt to put off the execution finally failed, that the present attempt was made to file an appeal against the final decree, which is bereft of any bonafides. 3. We heard both sides. 4. Admittedly the petitioner approached this court by filing a writ petition and that was disposed of in 2006. Thus, the petitioner was well aware that if he was aggrieved by the judgment, he ought to have filed an appeal. Instead, he confined to challenge only the execution proceedings on the ground that only a portion of the property can be sold. It is virtually accepting the decree. Further, if the fact as stated in the affidavit is true that he had no money which itself is disputed in the counter affidavit, the RFA 325/08 & C.M.Appl.No.1002/08 -3- remedy open to the appellant is to file an indigent appeal which he did not do so. Therefore, we are not impressed by the contention that the non- filing of the appeal is due to the fact that he was not in a position to raise the fund for paying court fee. Further, this is also not a sufficient ground for condonation of delay. Such contention can be raised by anybody. The affidavit is also silent as to the properties possessed by the petitioner at the time of passing the decree and how he raised the find now for payment of court fee and why he could not raise such fund earlier. Thus, the plea raised is also vague and unsupported by any evidence. 5. In the above circumstances, there is no justifiable explanation for condonation of delay. The delay petition is dismissed. R.F.A.No.325/2008 Consequent on the dismissal of the application for condonation of delay, the appeal is also dismissed. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/