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VASU, S/O. KIZHAKKEPURAKKAL UNIKUTTY versus ASARIPARAMBIL DAMODARAN, S/O. THUPRON

High Court of Kerala

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VASU, S/O. KIZHAKKEPURAKKAL UNIKUTTY v. ASARIPARAMBIL DAMODARAN, S/O. THUPRON - CRP No. 186 of 2006 [2006] RD-KL 2071 (28 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 186 of 2006()

1. VASU, S/O. KIZHAKKEPURAKKAL UNIKUTTY,
... Petitioner

2. MANGATTUPARAMBIL DEVAKI,

Vs

1. ASARIPARAMBIL DAMODARAN, S/O. THUPRON,
... Respondent

For Petitioner :SRI.K.RAMACHANDRAN

For Respondent :SRI.T.KRISHNAN UNNI

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :28/11/2006

O R D E R

M.SASIDHARAN NAMBIAR, J.

C.R.P..NO.186 OF 2006 (H)

Dated this the 28th day of November, 2006.

ORDER

Petitioners are respondents in I.A.705/05, an application filed under Section 5 of Limitation Act, in A.S.25/05, to condone delay in filing the appeal. The appeal was filed challenging the final decree passed on 19.12.03. The appeal was filed after a delay of 402 days. Meanwhile, respondent filed execution petition. The executing court directed delivery of the share allotted to the first petitioner and it was taken delivery on 17.11.04. Respondent, in the application to condone the delay, contended that he had shifted his residence to Tirupur of Tamilnadu and had filed an appeal against the preliminary decree and he was advised by the counsel that he would be intimated about the result of the appeal and the appeal is still pending and meanwhile he got information that final decree was passed and property was taken delivery of and he was advised to file an appeal and he applied for a certified copy of the final decree and with the application to condone the same appeal was filed. It was contended that there was no willful negligence on his part and therefore the delay has to be condoned. Petitioner filed an objection contending that there is no sufficient ground to condone the delay and notice in the execution petition was also served on respondent at Tirur and not at Tirupur and therefore the delay cannot be C.R.P..NO.186 OF 2006 (H) 2 condoned. As per order dated 4.1.06, learned Sub Judge held that though there is a delay of 402 days it is only just and proper to give a chance to respondent to challenge the final decree and technical hindrance of limitation shall not stand in the way. The order is challenged in the revision petition filed under Section 151 of Code of Civil Procedure.

2. Learned counsel appearing for petitioner and respondent were heard.

3. Argument of learned counsel appearing for petitioner relying on the decision of this court in Karmali v. Joseph (1988 (2) KLT 714) and in Guddappa Rai v.Narayana Rai (1999 (3) SN 68 )and Apex court in Jayachandran v. State of Kerala (1992 (2) KLT 647) is that Limitation Act is not an equitable statute and under the guise of interpreting Section 5, court is not entitled to nullify it and the discretion has to be exercised properly and judiciously and in spite of the contention raised by petitioner that the reason shown in the petition by the respondent is not correct, court below did not consider the objection.

4. Lrearned counsel appearing for petitioner argued that court below on the facts and circumstances was satisfied that opporutnity is to be granted to respondent to have a decision on merits and that discretion may C.R.P..NO.186 OF 2006 (H) 3 not be interfered. It was also argued that ever if a party failed to establish sufficient cause, if the court finds that an opportunity is to be granted to the party, in the interest of justice, court can condone the delay.

5. On going through the impugned order it is clear that the learned Sub Judge did not consider the objections raised by petitioner disputing the case alleged by the respondent. Delay was condoned only for the reason that final verdict has to be given on merits and technical hindrance shall not stand in the way. There is no finding on the sufficiency of the cause shown by respondent. In fact that was not considered at all. Hence the order is set aside. I.A.705/05 is restored and remand to the Sub Court, for fresh disposal in accordance with law. Court below is directed to dispose the application after affording opportunity to the parties to adduce evidence. M.SASIDHARAN NAMBIAR,

JUDGE.

bkn


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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