IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 RSA.No. 135 of 2010() --------------------- I.A.No.2025 of 2009 in AS.320/2009 of DISTRICT COURT,KOLLAM OS.492/2003 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------- VIJAYAN, S/O. VASUDEVAN PILLAI, VIJYMANDIRAM, PALACKAL MURI, THEVLAKKARA VILLAGE, KARUNAGAPPALLY, NOW RESIDING AT NANI NIVAS, THEVALLY WARD, KOLLAM REPRESENTED BY THE POWER OF ATTORNEY HOLDER V. THULASEEDHARAN PILLAI, AGED 47, VIJYAMANDIRAM, PLALACKAL MURI,THEVALAKKARA(V),KPLY BY ADV. SRI.B.KRISHNA MANI RESPONDENT/RESPONDENT/ PLAINTIFF ------------------------ SREEPRAKASH, S/O. THANKAPPAN PILLAI, SREEBHAVANAM, PALACKAL MURI, THEVALAKKARA VILLAGE, KARUNAGAPPALLY. ADV. SRI.M.P.RAMNATH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.135 of 2010 --------------------------------------- Dated this 24th day of March, 2010 JUDGMENT Admit. The following substantial question of law is framed for a decision: “Whether the first appellate court was justified in dismissing I.A.No.2025 of 2009 in A.S.No.320 of 2009?.” 2. This second appeal arises from judgment and decree of learned District Judge, Kollam in A.S.No.320 of 2009 consequent to the dismissal of I.A.No.2025 of 2009 for condonation of delay of 2086 days. The suit was for recovery of money from the appellant. An ex parte decree was passed as prayed for by the respondent. Execution proceeding was launched. There was challenge to the execution proceeding at various levels which came this court in the form of writ petitions and the same were either withdrawn or dismissed. While so appellant filed A.S.No.320 of 2009 before the first appellate court challenging the ex parte decree and judgment with I.A.No.2025 of 2009 to condone the delay as aforesaid stating that appellant did not get an opportunity to contest the case and adduce evidence on his behalf and he did not get any advice to prefer an appeal on the decree contesting the case. He stated that had he got advice to prefer appeal he would have filed appeal on the decree and thereby get an opportunity to contest the case. He got advice to prefer an appeal R.S.A.No.135 of 2010 2 only now and the appeal is preferred on the judgment and decree passed on 19-12-2003. The application was opposed by the respondent with equal vehemence stating that when respondent initiated execution proceeding appellant even handed over the batten to his mother and a relative of the mother who also had their part of the race, but lost. He also contended that in the meantime writ petitions were filed in this court, according to the respondent making use of false documents and hence the delay is not be condoned. No evidence was adduced before the learned District Judge. Learned District Judge holding that the delay is not properly explained, dismissed the application. Consequently appeal also was dismissed and hence the second appeal. It is contended by learned counsel for appellant that the various steps taken by the appellant though in the execution proceeding would show the vehemence with which he was challenging the judgment and decree though those proceedings did not fructify. Appellant has filed an additional affidavit in this court this day explaining the circumstances under which delay occurred. 3. An ex parte decree was passed in the case on 19-12-2003. Going by the affidavit of the power of attorney holder of the appellant in support of I.A.No.2025 of 2009, appellant got advice only now and filed appeal on the decree passed on 19-12-2003. Appeal was presented before the first appellate court only in the year 2008. It is apposite to refer to the proceedings that intervened in the meantime. R.S.A.No.135 of 2010 3 Appellant, represented by his power of attorney holder filed W.P.(C). No.3803 of 2008 in this court to quash the proceeding relating to proclamation of sale of the property of the appellant which was brought up for sale in execution of the ex parte decree and for stay of further proceeding in E.P.No.312 of 2006. That petition was dismissed by this court as per judgment dated 01-02-2008 stating that records revealed callous negligence and grave misconduct of the appellant and in such a case jurisdiction under Article 227 of the Constitution of India cannot be exercised. That was followed by writ petition No. 8775 of 2008 seeking direction to defer the execution proceedings since appellant had filed an appeal in the District Court, Kollam with an application to condone the delay (copy of appeal memorandum and application for condonation of delay were produced in the writ petition as Exts.P2 and P3) and submitting that due to pressure of work in that court the appeal and application are not being taken up. This court dismissed the writ petition observing that attempt is to protract the execution proceeding. Then came W.P.(C).No.19880 of 2009, again on the same grounds as in the previous writ petition there also stating that appeal and application to condone the delay has already been filed before the learned District Judge, Kollam. Respondent pointed out that no such appeal or application to condone delay had been filed by the appellant before learned District Judge. When that was pointed out the writ petition was withdrawn and accordingly this court as per R.S.A.No.135 of 2010 4 judgement dated 03-08-2009 dismissed the writ petition. The next proceeding is W.P.(C).No.29822 of 2009. By that time appellant had filed A.S.No.320 of 2009 and that appeal and application to condone the delay were dismissed. In that writ petition it was submitted on behalf of appellant that there was a mistake on his part in producing copy of memorandum of appeal and application and in the earlier writ petition in that though no such appeal or application were then filed, appellant believed his counsel in the first appellate court who handed over a copy of appeal memorandum and application for condonation of delay stating that the same were already filed. Appellant stated that he believed whatever his counsel in the first appellate court had told him and produced in this court copy of appeal memorandum and application to condone delay handed over to him by his counsel in the first appellate court. In the meantime this court had directed appellant to deposit certain amount, initially Rs.1,35,000/- and later when W.P. (C).No.29822 of 2009 was pending, Rs.50,000/- in the trial court. Accordingly appellant deposited Rs.1,85,000/- in the said court. This court disposed of W.P.(C).No.29822 of 2009 on 15-01-2010 taking note of dismissal of A.S.No.320 of 2009 and directed learned District Judge, Kollam to issue a copy of the judgment/order in A.S.No.320 of 2009, if applied for, within two weeks from the date of receipt/production of a copy of the judgment in the writ petition. This court also directed that execution proceeding will stand in abeyance for a period of three R.S.A.No.135 of 2010 5 weeks from the date of judgment. Thereafter getting certified copy of the judgment and decree and order in I.A.No.2025 of 2009 this second appeal has been preferred on 04-02-2010. Since the second appeal concerned correctness of the order on I.A.No.2025 of 2009 and the counsel have given me the copy of the affidavit and counter on I.A.No.2025 of 2009 I have not called for the records. 4. Now, in the affidavit filed in the first appellate court in support of I.A.No.2025 of 2009 power of attorney holder of appellant who is said to be a court employee has stated that an advice to prefer a appeal was given to the appellant only now and the appeal is preferred on the decree dated 19-12-2003. In the additional affidavit filed in this court it is stated that after the ex parte decree was passed appellant contacted the respondent who had agreed to be satisfied with the sum of Rs.25,000/- which alone according to the appellant, was due to the respondent with interest and cost. Respondent also assured the appellant that he is not in need of the property of the appellant. Thereafter, there was change of face of respondent and sensing that, appellant approached his counsel in the first appellate court to prefer the appeal. 5. In the affidavit in support of the application filed in the first appellate court it is stated that there was no advice given to prefer the appeal but only now such an advice was given. Learned counsel for appellant would explain that it is pursuant to that advice in the year R.S.A.No.135 of 2010 6 2008 that instruction was given to the counsel to prefer appeal and the counsel gave a copy of appeal memorandum and application to condone the delay as if the appeal and the said application had been filed in the year 2008. Appellant was under the impression that the appeal was preferred. I am not going into, at this stage the truth or sufficiency of the statement in the affidavit and additional affidavit preferred by the appellant. I think, this is a case where evidence is required to be adduced by the appellant. It is also required to be ascertained how appellant got a copy of appeal memorandum and copy of application to condone the delay (produced in W.P.(C).No.8775 of 2008 and marked as Exts.P2 and P3) while it turned out that no such appeal or application had then been filed in the District Court, Kollam. It has to come out how appellant got copy of such an appeal memorandum and application. Were it actually handed over to the appellant by his counsel as he claims and if not, how did the appellant get it?. An enquiry and finding is required. It is also for appellant to prove before the first appellate court the reasons he has now stated for condonation of delay. Considering these circumstances I am persuaded to think that appellant has to be given an opportunity to prove his case stated in the original affidavit and the additional affidavit filed in this court to condone the delay. In the circumstance, I am persuaded to set aside judgment and decree of the court below and the order on I.A.No.2025 R.S.A.No.135 of 2010 7 of 2009. The substantial question of law framed is answered in the above lines. Resultantly judgment and decree of learned District Judge, Kollam in A.S.No.320 of 2009 and the order on I.A.No.2025 of 2009 are set aside and the appeal and I.A.No.2025 of 2009 are remitted to that court for fresh disposal after giving both sides opportunity to adduce evidence on I.A.No.2025 of 2009 in support of their respective contentions as to the cause of delay. The amount deposited by the appellant in the trial court will remain in such deposit until otherwise directed by the learned District Judge. Registry shall transmit the additional affidavit and connected papers filed by the appellant in this court (24-03-2010) this day to the court of learned District Judge, Kollam. If the respondent has any objection to be preferred against that additional affidavit it will be open to the respondent to file such objection before the learned District Judge. Parties shall appear before the learned District Judge, Kollam on 07-04-2010. Learned District Judge shall dispose of I.A.No.2025 of 2009 as expeditiously as possible at any rate, before 15-07-2010. Until disposal of that application execution proceedings will stand in abeyance. THOMAS P JOSEPH, JUDGE Sbna/