IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH DAY OF April 2013 AS.No. 301 of 1996 ( ) ----------------------- AGAINST THE ORDER/JUDGMENT IN OS.22/1993 of SUBORDINATE JUDGE, QUILANDY DATED 08-08-1995 .................................................. APPELLANT(S)/PLAINTIFF : ------------------------------------- VADAKKEKUNNATH GOPALAN, S/O.CHANDU, PENSIONER, VADAKKEKUNNATH HOUSE, P.O.CHELANNUR, KOZHIKODE DISTRICT. BY ADVs. SRI.P.N.K.ACHAN, SMT.K.R.DEEPA RESPONDENT(S)/DEFENDANTS : --------------------------------------------- 1. SREEDEVI BRAHAMINI AMMA, D/O.VARIATH MANDAMVALLI PARVATHI BRAHAMANI AMMA. 2. CHILDREN CHATHANPARAMBATH GOPALAKRISHNAN, 3. CHATHANPARAMBATH CHANDRAVALLI BRAHAMINI AMMA. 4. CHATHAMPARAMBATH VASANTHA KUMAR BRAHMANI AMMA. 5. CHATHANPARAMBATH SHOBHANA. 6. CHATHANPARAMBATH BALACHANDRAN. 7. CHATHANPARAMBATH HARIDASAN. 8. CHATHANPARAMBATH SANKARAN. (RESPONDENTS 1 & 2 RESIDE IN TRIKKUTHSSERI AMSOM, QUILANDY TALUK, KOZHIKODE DISTRICT AND RESPONDENTS 3 TO 8 RESIDE IN KIZHAKKUMMINI AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.) R, BY ADVs. SMT.PREETHY KARUNAKARANN, SMT.MINI.M.R. SRI.C.RAMAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09.04.2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. .................................................. C.M.Appl. No.154 of 2013 & M.J.C. No.192 of 2013 in A.S.No.301 of 1996 ....................................................... Dated this the 9th day of April, 2013. ORDER Thottathil B.Radhakrishnan, J. The plaintiff in the suit for recovery of money on the basis of an equitable mortgage created by deposit of title deeds lost the suit. He therefore, filed the appeal in the year 1996. Then, that matter, ultimately, came up for hearing on 16th July 2010. The learned counsel appearing for the appellant submitted no instructions. The appeal was hence dismissed. This application for restoration comes up with an application seeking condonation of delay of 920 days, that is to say, nearly three years after the dismissal of the appeal on the counsel for the appellant reporting no instructions. The delay is sought to be explained by an C.M.Appl. No.154 of 2013 IN M.J.C. No.192 of 2013 IN A.S.No.301 of 1996 2 affidavit of the appellant who, going by the affidavit, is 85 years old. He has produced a medical certificate issued on 17/02/2013 by a doctor stating that the appellant, aged 86 years, is bedridden since past 2 years due to “old age problem, walking difficulty and gastric upset” and is under continuous treatment. We may immediately recall that the application seeking condonation of delay says only that the appellant had no communication with his counsel, apart from the health issues stated above. We are not satisfied with the reasons extended for condonation of enormous delay in filing the MJC. 2. We looked into the merits of the appeal once again to assure ourselves as to whether any injustice would result if we were to dismiss the application for condonation of delay and the MJC seeking restoration of the appeal. The plaintiff and the first defendant's late husband had cordial relationship, including commercial in nature. The plea of the plaintiff is that sometime in 1983, the defendants, who C.M.Appl. No.154 of 2013 IN M.J.C. No.192 of 2013 IN A.S.No.301 of 1996 3 are the wife and children of his late friend, had created an equitable mortgage by deposit of title deed. The plea is that the partition deed was deposited and Ext.A2 is the acknowledgment of such deposit. We have pointedly adverted to the findings of the court below under issue No.2 wherein the trial court has categorically held that it would be too artificial to assume that the defendants had gone all the way to Central Library, Calicut to create an equitable mortgage in favour of the plaintiff by depositing the title deeds. We also see the finding of the court below that there is no material to show that the defendants' residence is within a notified area for the purpose of creating an equitable mortgage by deposit of title deeds. The court below has said this in the context of having disbelieved the plaintiff's case of the defendants having carried the document to the Central Library, Calicut and having regard to the fact that, if at all, the creation of a mortgage could have been only attempted in the residence of the C.M.Appl. No.154 of 2013 IN M.J.C. No.192 of 2013 IN A.S.No.301 of 1996 4 defendants. Not only that, the partition deed by itself is no title deed as the trial court has also noted certain other obligations remaining on it. As noted earlier, we are not satisfied that sufficient cause has been shown to condone the enormous delay and to have the appeal restored. The C.M.Appl. and the M.J.C are, therefore, failed. In the result, C.M.Appl. and the M.J.C. are dismissed in limine. sd/- (THOTTATHIL B.RADHAKRISHNAN, JUDGE) sd/- (S.S.SATHEESACHANDRAN, JUDGE) AMV/10/4/ /TRUE COPY/ P.A.TO JUDGE