IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 RSA.No.176 of 2006 (D) ---------------------------- AS.24/2002 of II ADDL.SUB COURT, KOZHIKODE OS.220/1993 of ADDL.M.C-I,KOZHIKODE .................... APPELLANT/APPELLANT/IST DEFENDANT ------------------------------------------------- THANKAM @ DEVAKI BRAHAMANI AMMA, AGED 63 YEARS, W/O.SANKARAN NAMBEESAN, POYIL HOUSE, KADAVOOR AMSOM, PALLIPURAM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 4 ---------------------------------------------------------- 1. KARADU JYOTHI, D/O.KESAVAN NAMBEESAN, AGED 32 YEARS, JYOTHI SADANAM, MANANTHAWADI, WAYANAD. 2. SUBADRA BRAHMANI AMMA, AGED 57 YEARS, D/O.KANDAMVALLI VADAKKEPATTU DEVAKI AMMA, VARIYAMKANDI, KANNANKARA VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 3. SUGHATA KUMARI, AGED 38 YEARS, D/O.KANDAMVALLI VADAKKEPATTU DEVAKI AMMA, VARIYAMKANDI, KANNANKARA, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 4. VINOD KUMAR, AGED 34 YEARS, S/O.KANDAMVALLI VADAKKEPPATTU DEVAKI AMMA, VARIYAMKANDI, KANNANKARA, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.NIRMAL. S THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Application No.124 of 2006 & R. S. A. No.176 of 2006 ------------------------------------------------ Dated this the 1st day of July, 2008 JUDGMENT This is an application seeking for condonation of delay of 205 days in filing the R.S.A. The judgment under appeal was delivered on 12/11/04 and this appeal is filed on 27/02/06. Copy of judgment dt.12/11/04 was applied for on 16/11/04 and copy was delivered on 12/05/05. Even after getting copy of judgment on 12/05/05, this appeal is filed only on 27/02/06, after more than nine months. 2. The suit is one for partition and the first respondent/plaintiff alone sought for separate allocation of shares and the first respondent in her counter to this C.M. Application has averred that she has taken delivery of the share allotted to her in execution of the decree on 30/05/06. The above R. S. A. No.176 of 2006 -2- statement is not assailed by counsel for the petitioner/appellant. 3. The case of the appellant/petitioner is that the appeal ought to have been filed on or before 06/08/05, but she could not file the appeal in time as she is an aged woman and is suffering from Chronic inter vertebral disc prolapse with severe lower back ache and is undergoing treatment for the same; that during July, 2005 her disease became intolerable and the Doctor advised her to take complete bed rest at least for six months and so she was unable to contact her lawyer, though, however with the help of her cousin brother she could contact the counsel during last week and entrust the file with him for preferring the appeal and thus a delay of 205 days is occasioned in filing the appeal. She has produced as Annexure-A1 certificate issued by a Doctor who is running a clinic under the R. S. A. No.176 of 2006 -3- name and style Prasanthy Clinic. It is dt.09/01/06 and is certifying that the appellant is under his treatment and medical advice from 26th July, 2005 onwards. I am not prepared to accept the certificate at its face value when it is seen that the appellant is not at all keen in seeing that her case is prosecuted properly. Even after filing this appeal though notice was ordered on the C.M. Application and notice to R4 was returned unserved with the report “not known” as early as in March, 2006 no step was taken for service being completed till March, 2008. It has to be remembered in this context that the decree that is sought to be assailed is already executed and delivery has been taken by the first respondent/decree holder of her share in the scheduled property and no other sharer is having any objection to the decree passed in the suit. R. S. A. No.176 of 2006 -4- 4. Showing any leniency to the appellant will be to upset the rights that have accrued to the first respondent as also to the other respondents by reason of non-filing of any appeal by the appellant. I am not of the view that there is any just and sufficient cause to condone the delay of as much as 205 days in filing this R.S.A. This C.M. Application, in the circumstances is dismissed refusing to condone the delay of as much as 205 days in filing the R.S.A. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-