IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 RSA.No. 115 of 2008() --------------------- A.S.118/01 OF VI ADDL.DISTRICT COURT, ERNAKULAM O.S.2224/97 OF PRL.M.C., ERNAKULAM APPELLANT/RESPONDENT/DEFENDANT ----------------------------------------------- VENUGOPALAN, AGED 51 YEARS CONTRACTOR, S/O.KUTTAPPAN, KARIKKETH HOUSE TALACODE DESOM, KANAYANNUR VILLAGE KANAYANNUR TALUK, PIN-682 314. BY ADV. SRI.C.T.JOSEPH RESPONDENT/ APPELLANT/PLAINTIFF -------------------------------- CHELLAPPAN, AGED 68 YEARS S/O.PONNAPPAN ACHARI, KALAPPURAKKAL HOUSE KARIKODE DESOM, P.O.MULANTHURUTHY MULANTHURUTHY VILLAGE, PIN-682314. BY ADV. SRI.K.V.JAYACHANDRAN RAJU.V.MATHEW THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JUDGMENT C.M.APPLN.96/2008 filed under Section 5 of the Limitation Act to condone the delay in filing the appeal is dismissed. Consequently appeal is also dismissed. Sd/-M.SASIDHARAN NAMBIAR,JUDGE ORDER ON I.A.NO. 294/08 IN RSA 115/08 DISMISSED 10/4/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Application No.96 of 2008 & R. S. A. No.115 of 2008 ------------------------------------------------ Dated this the 2nd day of June, 2008 JUDGMENT This is an application for condonation of delay of 1714 days in filing the R.S.A. The decree and judgment assailed is dt.13/02/03 and this R.S.A is filed on 31/01/08, almost after five years. It is seen that for copy of decree and judgment in A.S.118/01 dt.13/02/03, copy application is filed only on 02/01/08 and copy was delivered on 08/01/08 and it is thereafter that this appeal is filed on 31/01/08. The averment of the appellant in the affidavit filed in support of the C.M. Application explaining the cause for delay is that after disposal of appeal by the first appellate court, he approached his counsel who appeared in the lower court for filing the appeal from the impugned judgment and decree; that his signature used to be obtained in some petition or the other and he was under the R. S. A. No.115 of 2008 -2- bona fide belief that the appeal was filed and was being prosecuted and that it is only when he was informed that his property was being put up for sale in execution of the decree in the suit that he came to realise that no appeal was filed, but that only execution petition was being resisted. According to him, he is a Maison who is illiterate and he could not understand that no second appeal was filed and it is thus that delay of 1714 days has occasioned in filing the appeal. 2. A detailed counter has been filed by the respondent contending that, he filed E.P.818/03 and the appellant had been contesting the same; that when he brought the properties for sale in execution of the decree, the appellant's father filed claim petition on 22/09/04 claiming that the properties belongs to him; that the appellant filed objections on 02/08/05 raising plea of no means and the E.P. happened to be dismissed for default on 18/01/06 that subsequently, he R. S. A. No.115 of 2008 -3- filed E.P.41/06 and brought the property of the appellant for sale that in the meanwhile in 2005 the appellant assigned his property in the name of his wife and claim petition was filed by her as E.A.935/06 and sought for lifting of attachment; that the said petition was dismissed on 22/01/07; that thereafter as the property was found to be within the territorial limits of the Muvattupuzha Munsiff's Court the decree was got transferred to the Munsiff's Court, Muvattupuzha where E.P.189/07 was filed on 14/12/07; that the appellant filed objection on the ground that the property belongs to his wife; that the said objection was overruled on 03/01/08 that thereafter when the property was proclaimed for sale the wife of the appellant again filed E.A.26/08 on 22/01/08 advancing the very same claim which was rejected; that the said claim petition also was dismissed; and that it is after exhausting all remedies in the execution proceedings that the petitioner/appellant has R. S. A. No.115 of 2008 -4- filed this appeal with the petition to condone the delay of 1714 days though the actual delay is 1723 days. 3. The contentions so raised by the respondent show that the appellant was partaking in execution proceedings by himself and through his wife advancing claim to the property attached and that it is after all that, that this R.S.A is filed assailing the decree and judgment of the first appellate court passed as long back as in 2003 after about five years of the said decree and judgment. There is absolutely no just and sufficient cause in condoning the delay of as much as 1714 days in filing the appeal. 4. In the result, refusing to condone the delay of 1714 days, I dismiss this C.M. Application. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-