IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 CRP.NO. 879 OF 2008() ---------------------------------- AGAINST THE ORDER IN IA.4120/2008 IN AS.148/2008 OF ADDL.SUB COURT, IRINJALAKUDA .................... REVN. PETITIONER(S): PETITIONER/RESPONDENT ------------------------------------------------------------------------- MOHANDAS, S/O.KALYANIKUTTY AMMA, PUTHANVEETTIL HOUSE, IRINJALAKUDA, THRISSUR DT. BY ADV. SRI.P.K.JOSEPH RESPONDENT(S): PETITIONER ---------------------------------------------- MOHANDAS, S/O.KAKKERY APPUKUTTAN, 'AKSHAYA', KURUMBISSERY LANE, IRINJALAKUDA P.O., THRISSUR DISTRICT. ADV. SRI.K.S.BHARATHAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.879 of 2008 ==================================== Dated this the 16th day of August, 2010 O R D E R Petitioner challenges order dated 28.11.2008 on I.A. No.4120 of 2008 in A.S. No.143 of 2008 of the court of learned Additional Sub Judge, Irinjalakuda condoning the delay of 393 days in filing the appeal. That appeal arose from judgment and decree in O.S. No.1172 of 2005 declaring that respondent has no right to continue in the shop room since licence arrangement has been revoked and directing him by a mandatory injunction to remove the articles belonging to him and kept in the shop room. Respondent requested that the delay may be condoned. In the affidavit in support of the application (Annexure A4) it is stated that counsel for respondent had advised him that since the decree is merely of a declaratory nature it is not executable and that at any rate since none of the articles which were in the shop room at the time of institution of the suit are available at present in the shop room, mandatory injunction is not executable. It is only later when respondent got notice in the execution petition that he C.R.P. No.879 of 2008 -: 2 :- learnt that decree is executable and thereon he preferred the appeal. Application was opposed by petitioner contending that delay is not satisfactorily explained. Learned Sub Judge allowed the application vide impugned order. It is contended by learned counsel that delay was condoned without sufficient cause. At any rate respondent who is continuing in unlawful occupation may be directed to pay the licence fee by way of damages for use and occupation. Learned counsel for respondent while supporting the order contended that claiming arrears of licence fee petitioner has filed O.S. No.296 of 2008 and that suit ended in a compromise decree. 2. Now the question for consideration is whether this Court should interfere with the impugned order condoning delay of 393 days. This Court is requested to exercise its revisional jurisdiction under Section 115 of the Code of Civil Procedure. It is not as if appellate court was not having the power to condone delay. It is also not as if appellate court has exercised that power in an arbitrary manner. Appellate court considered the reasons stated by the respondent and found on facts that delay is properly explained. In sitting in revision I do not find reason to interfere with the impugned order. C.R.P. No.879 of 2008 -: 3 :- 3. So far as request made by learned counsel for petitioner regarding deposit of licence fee by way of damages for use and occupation is concerned it is seen that in the impugned order a direction has been made by the learned Sub Judge to deposit the arrears of licence fee payable on or before 3.12.2008. If any further amount is payable by the respondent it is within power of appellate court to issue appropriate direction in the course of appeal or if necessary even while considering the request for stay of execution of the decree if any made by the respondent. I leave that mater for consideration of learned Sub Judge. Resultantly this Revision Petition fails and it is accordingly dismissed. Learned Sub Judge is directed to expedite disposal of the appeal. I make it clear that it is open to the petitioner to request learned Sub Judge to direct respondent to deposit further amount if any due from the respondent. Such order shall be passed after hearing counsel for respondent as well. THOMAS P. JOSEPH, JUDGE. vsv