IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 RSA.No.1334 of 2008 (A) ------------------------------ AS.230/2000 of DISTRICT COURT, KOTTAYAM OS.546/1990 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/APPELLANT/2ND DEFENDANT ------------------------------------------------- KUNJU MOHAMMED, OLAYAPARAMBIL HOUSE, HOUSE NO.11/52, OLAYAPARAMBIL, NOVELTY LADIES STORES, OLD MUNCIPAL BUS STAND, KOTTAYAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 AND 3 TO 6: ----------------------------------------------------- 1. V.D.EDWARD, S/O DEVASIA, VARIKKATTU HOUSE, KARAPUZHA, KOTTAYAM VILLAGE. 2. SMT. FATHIMA BEEVI, D/O KUNJU BHAVA, NEDUMPARAMBIL HOUSE, PERUNNA KIZHAKKA KARA AND VILLAGE, CHANGANACHERRY TALUK. 3. A.M.JALALUDHIN, ANAKULAPARAMBU, THAZHATHANGADY, KOTTAYAM VILLAGE. 4. SMT. MOLLY NINAN, TRAFFIC ASSISTANT, INDIAN AIRLINES, THIRUVANANTHAPURAM. RSA.No.1334 of 2008 (A) -2- 5. MOBI NINAN, C/O SMT. MOLLY NINAN, INDIAN AIRLINES, THIRUVANANTHAPURAM. 6. JUBY NINAN, C/O SMT. MOLLY NINAN, INDIAN AIRLINES, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.1334 of 2008 ------------------------------------------------ Dated this the 4th day of March, 2009 JUDGMENT This is appeal filed by the second defendant in O.S.546/90 on the file of the Sub Court, Kottayam who was the second counter petitioner in I.A.3126/93 which was an application for passing of final decree by the plaintiff. The final decree was passed on 13/11/96. The appeal was filed before the District Court, Kottayam by the appellant on 06/10/2000. The appeal was dismissed by the first appellate court holding that the appeal is barred by limitation. It is the said dismissal that is assailed by the appellant/second defendant before me. 2. When the matter came up before me for admission hearing on 11/02/09, the Registry was directed to ascertain from the Sub Court, R. S. A. No.1334 of 2008 -2- Kottayam as to whether the copy application filed on 27/11/96 vide application No.A- 2367/96 by Advocate Sri.P.V.Thomas for copy of final judgment in O.S.546/90 was also requesting for copy of final decree passed in the said suit as the submission was that the said application was filed for copy of final decree and judgment. Subsequently, this Court vide order dt.23/01/09 directed the Registry to obtain certain details from the Sub Court, Kottayam inter alia the date of passing of final decree in O.S.546/90; the date of signing the final decree; the date on which plaintiff produced stamp papers; the date on which final decree was drawn up; the date on which final decree was engrossed on stamp papers and the same became available for issue of certified copy; the date on which the second defendant who is the appellant herein R. S. A. No.1334 of 2008 -3- applied for certified copy of the final decree after the decree was engrossed; the date on which he produced stamp papers; the date notified for receipt of copy and the date on which the copy was taken delivery of by the second defendant. The Registry was also directed to ascertain from the District Court, Kottayam as to whether any appeal had been filed by the appellant/second defendant whether defective or otherwise from O.S.546/90 on the file of the Sub Court, Kottayam and if so, the date of filing of the said appeal and the defect noted in the said appeal and the date on which the appeal was returned as defective. Pursuant thereto, report has been received to the effect that the final decree was passed on 13/11/96; that final decree was signed on 05/08/2000; that the plaintiff produced stamp papers for drafting final R. S. A. No.1334 of 2008 -4- decree on 26/07/2000; that the final decree was prepared on 31/07/2000; and was engrossed on the stamp papers and was available for issue of certified copy on 05/08/2000; that the appellant/Second defendant applied for final decree on 07/08/2000 as per application A. No.1610/2000 in the 'A' Register; that the appellant produced stamp papers on 29/08/2000; that the date notified to receive copy was 19/09/2000 and the appellant/second defendant took delivery of copy on 29/09/2000 as per the 'A' register. 3. The District Judge, Kottayam reported that the appellant/second defendant filed an appeal before that court from O.S.546/90 of the Sub Court, Kottayam that the said appeal was defective because copy of final decree had not been produced; that the said appeal was being filed on 03/03/1998; that as the R. S. A. No.1334 of 2008 -5- application filed to receive the appeal without copy of final decree was dismissed, the unnumbered appeal was rejected on 09/03/1998 and that thereafter A.S.230/2000 was filed by the appellant/second defendant on 06/10/2000; that there was delay in filing the appeal and the delay condonation petition I.A.1327/2000 filed along with the said appeal was dismissed and consequently, the appeal also was dismissed on 30/10/02. All the same, the Sub Judge in his letter dt.02/03/09 has reported that Advocate Sri.P.V.Thomas filed copy application as A No.2367/96 on 27/11/96; that Advocate Sri.P.V.Thomas also applied for order in O.S.546/90 dt.13/11/96 and on the said application date of calling of stamp papers is not noted; that the 'A' register has not been traced out; that the 'A' register of 1996 is missing; that as per the copy R. S. A. No.1334 of 2008 -6- application, the appellant remitted printing charge of Rs.99/- on 22/08/97; that the fair copy Superintendent submitted before him that the 'A' register has not been traced out till then and the Sheristhadar also reported that the 'A' register containing application No.A 2367/96 is missing. 4. It is contended before me by the counsel for the appellant that he applied for copy of final decree and judgment as per copy application A.No.2367/96 on 27/11/96. It is seen that as per the said application a certified copy of the final judgment passed vide I.A.3126/93 in O.S.546/90 was taken delivery of by the appellant on 23/10/98 though 16/08/97 was fixed as the date for him to appear and receive copy and that as per the same application a printed copy of the said judgment was taken delivery of by him on R. S. A. No.1334 of 2008 -7- 23/02/99 though 18/02/99 was fixed as date for him to appear and receive copy. 5. Inasmuch as A 2367/96 which is the copy application filed by the appellant/second defendant on 27/11/96 is reported to be missing and the 'A' register also is not traceable in the trial court the appellant cannot be put to any difficulties on that score. It is therefore, to be taken that he has applied for copy of decree and judgment on 27/11/96 as per copy application No.A 2367/96. The final decree was drafted on 05/08/2000 and only as per application filed on 07/08/2000 as A No.1610/2000 the appellant was furnished with a copy of the decree. He took delivery of copy of decree on 29/09/2000 though the date notified to receive the copy was 19/09/2000. 6. In view of the above details obtained from the courts below, the date of application R. S. A. No.1334 of 2008 -8- for copy of judgment and decree has to be taken as 27/11/96. Copy of judgment was delivered to him on 23/02/99 and copy of decree is to be deemed to have delivered to him on 19/09/2000 as that was the date notified for receipt of copy of the decree though on a subsequent application filed by the appellant/second defendant. Hence, the position would be that for copy of final decree and judgment passed on 13/11/96 the appellant applied for copy on 27/11/96; that printing charges were called for on 20/08/97 and that was produced on 22/08/97; that copy was ready on 13/02/99 and date fixed to appear to receive copy was 18/02/99 in relation to copy of judgment though that was taken delivery of only on 23/02/99 and in relation to copy of decree the date of delivery of copy of decree has to be taken as 19/09/2000 though R. S. A. No.1334 of 2008 -9- it was taken delivery of only on 29/09/2000 as date fixed to appear copy was 19/09/2000. With the above relevant dates, the first appellate court has not considered as to whether there is delay and if so, it can be condoned. 7. In the result, I set aside the decree and judgment passed by the lower appellate court as also the order passed by that court on I.A.1327/2000 which resulted in dismissal of the appeal and remit the appeal back to the District Judge, Kottayam who shall consider I.A.1327/2000 afresh considering as to whether the delay can be condoned and shall dispose of the appeal afresh depending on the result of the order to be passed on I.A.1327/2000. While considering I.A.1327/2000 afresh the District Judge shall also consider as to whether the time to prefer appeal has to be considered going by the dates shown in the copy of R. S. A. No.1334 of 2008 -10- printed judgment delivered to the appellant/ second defendant or the period has to be counted considering the date of delivery of decree to the appellant treating his application A.2367/96 made on 27/11/96 as application for copy of decree as well. While considering the question of limitation, the appellate court shall also consider the effect of the amendment brought into in Order 41 Rule 1 with effect from 01/07/02 by Act 46 of 1999 as the appeal was filed before the District Court by appellant/second defendant only on 06/10/2000 whereas the date fixed to receive printed copy of judgment was 18/02/99 and the necessity of production of a decree along with the appeal memorandum was dispensed with by the amendment with effect from 01/07/02. 8. The second appeal is thus, disposed of at the admission stage without notice to R. S. A. No.1334 of 2008 -11- respondents allowing the appeal and remitting the appeal back to the District Court. The District Judge shall dispose of A.S.230/2000 afresh with notice to the respondents who are to be given an opportunity to advance their arguments also in the matter of condonation of delay as obviously there is some delay in filing the appeal. Registry shall transmit the records to the District Court without further delay. K.P.BALACHANDRAN, JUDGE kns/-