IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 RFA.No. 653 of 2008 ------------------------- OS.66/1998 of SUB COURT,ATTINGAL .................... APPELLANTS/DEFENDANTS: --------------------------------- 1. SATHYABHAMA, WIDOW OF SIVASANKARAN, AGED 77 YEARS, KOTTARATHIL VEEDU, PUTHENCHANTHA, VARKALA, VETTOOR DESOM AND VILLAGE. 2. SANTHAKUMARI, D/O.SATHYABHAMA, AGED 56 YEARS, PUTHENVEEDU, PALLIUM P.O., KANNANELLOOR. 3. SANAL KUMAR, S/O.SIVASANKARAN, AGED 52 YEARS, KOTTARATHIL VEEDU, PUTHENCHANTHA, VARKALA, NOW RESIDING AT PB NO.3028, DUBAI, UAE, REPRESENTED BY POWER OF ATTORNEY HOLDER, SRI.GOPINATHAN, AGED 50 YEARS, S/O.SIVARAMAN, R/O.PUTHENVILA VEEDU, VENKULAM, EDAVA. 4. ASOKAKUMAR, S/O.SIVASANKARAN, AGED 48 YEARS, KOTTARATHIL VEEDU, PUTHENCHANTHA, VARKALA. BY ADV. SRI.VIVEK VARGHESE P.J. RESPONDENT/PLAINTIFF: ------------------------------- SREEKUMAR, S/O.SIVASANKARAN, AGED 43 YEARS, KOTTARATHIL VEEDU, PUTHENCHANTHA, VARKALA, VETTOOR DESOM AND VILLAGE. ADV. SRI.K.RAJENDRAN (VENNICODE) FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.K. ABDUL REHIM, JJ. ------------------------------------------ R.F.A. No.653 OF 2008 & C.M.Appln.No.1936 OF 2008 ------------------------------------------ Dated this the 5th day of January, 2009. J U D G M E N T Kurian Joseph, J. C.M.Appln.No.1936/2008: This is an application for condonation of delay of 2210 days in filing the appeal. The appeal is against the preliminary decree dated 11.09.2002. On going through the affidavit accompanying the application for condonation of delay, we do not find any satisfactory explanation for the inordinate delay. It is stated that appellants 3 and 4 were employed abroad and they had no knowledge of the judgment, and that they came to know of the judgment only recently. Apart from such a vague statement, no particulars whatsoever are given as to their communication with other appellants or their visit to India in the meanwhile. 2. It is seen from the counter affidavit that the appellants had filed an application for final decree as I.A.No.2019/2006 as R.F.A.653/08 2 early as on 27.12.2006. They had also filed their objection to the commission application made by the plaintiff-respondent. Still further it is seen that appellants 3 and 4 had visited India, periodically. 3. The appellants are the mother, sister and brothers of the respondent-plaintiff. The suit was filed praying for partition of the plaint schedule property in five shares ignoring the partition deed No.3170/1995 dated 08.08.1995 of the Sub Registrar's Office, Varkala. There was also a prayer to allot the house - Kottarathil Veedu to the share of the plaintiff. The parties entered appearance and filed written statement. 4. It is not seen that any of the appellants had specifically made a claim for residential house. Learned counsel for the respondent-plaintiff submits that respondent is the only person left without any residential house and that in case his mother wants to stay in the house, he will accommodate her and give all facilities for her to stay peacefully in the house until her death. Be that as it may, it is also brought to our notice that the mother herself had released her share in favour of one of the sharers. All R.F.A.653/08 3 that apart, it is seen that the preliminary decree was passed based on an agreement among the parties to the effect that the plaint schedule property can be divided into five equal shares. In view of the averments in the plaint and in the absence of any claim on the part of others, it is seen that the trial court passed a preliminary decree to the effect that as far as possible, the house will be allotted to the share of the respondent-plaintiff. Now that the final decree application is pending, it is for the appellants to pursue their grievance with regard to the division before the trial court itself. Thus there is no merit also in the case. In the above circumstances, we do not find any ground to condone the inordinate delay of 2210 days in filing the appeal. Therefore, the application for condonation of delay is dismissed. The appeal is also dismissed. KURIAN JOSEPH JUDGE C.K. ABDUL REHIM JUDGE smp R.F.A.653/08 4 KURIAN JOSEPH & C.K. ABDUL REHIM, JJ. R.F.A. No. 653 OF 2008 J U D G M E N T 05.01.2009