RSA NO. 40 OF 2022 1 2025:KER:24649 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM TUESDAY, THE 18TH DAY OF MARCH 2025 / 27TH PHALGUNA, 1946 RSA NO. 40 OF 2022 AGAINST THE JUDGMENT AND DECREE DATED 23.09.2021 IN AS NO.61 OF 2020 OF SUB COURT, PALA ARISING OUT OF THE JUDGMENT AND DECREE DATED 15.06.2019 IN OS NO.82 OF 2012 OF MUNSIFF COURT, PALA APPELLANT/APPELLANT/1ST DEFENDANT IN O.S.NO.82/2012 – 2ND RESPONDENT IN FDA: SANTHOSH J. THOMAS AGED 61 YEARS SON OF JOSEPH, PUTHIYIDATHU HOUSE, ANTHINADU KARA, ANTHINADU P.O., LALAM VILLAGE, MEENACHIL TALUK - 686 651. BY ADV P.C.HARIDAS RESPONDENTS/RESPONDENTS/PLAINTIFF – DEFENDANTS 2– AND 3 IN O.S.NO.82/2012 – 1ST RESPONDENT AND PETITIONERS IN FDA: 1 GEORGE JOSEPH (ROYICHAN PUTHIYIDOM), AGED 61 YEARS, PUTHIYIDOM ESTATE, SIDDAPUR ROAD, CHANDRAGUTTI P.O., SIVAMOGA DISTRICT, KARNATAKA, PIN -577 429. 2 LISSAMMA AGED 50 YEARS W/O.THOMASKUTTY, PANAKKAL HOUSE, KIZHATHADIYOOR KARA, KAVIKUNNU P.O., LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 575. RSA NO. 40 OF 2022 2 2025:KER:24649 3 TESSYMOL J.PUTHIYIDAM AGED 52 YEARS W/O.GEORGE, PULIPPARAMBIL HOUSE, CHAMPAKKARA KARA, VYTTILA VILLAGE, VYTTILA P.O., KANAYANNOOR TALUK, ERNAKULAM DISTRICT - 682 038. BY ADVS. R1 V.RAJENDRAN (PERUMBAVOOR) GOPAKUMAR P. N.RAJESH R2 & R3 BABY THOMAS JOBY JOSEPH GEORGE T.J THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA NO. 40 OF 2022 3 2025:KER:24649 JUDGMENT 1. The first defendant in a suit for partition is the appellant. The Appeal is filed challenging the judgment of the First Appellate Court dismissing the Appeal consequent to the dismissal of the application to condone the delay of 455 days in filing the Appeal, taking grounds against the order dismissing the application to condone delay. 2. The Appeal before the First Appellate Court was filed against the Final Decree passed in the suit. 3. I heard the learned counsel for the appellant, Sri.P.C.Haridas and the learned counsel for the first respondent, Sri.V. Rajendran and the learned counsel for the respondents 2 and 3, Sri.Baby Thomas. 4. The learned counsel for the appellant contended that even though the period of delay which was shown in the application to condone delay is 455 days, if the period which was allowed to be excluded on account of COVID pandemic as per the orders of the Hon'ble Supreme Court is excluded, the actual delay is only 244 days. The counsel contended that it is well settled that the delay can be calculated only when the decree is ready for issuance, and the delay on the part of the Court for preparing the decree could not be taken RSA NO. 40 OF 2022 4 2025:KER:24649 into account even if the appellant did not file an application for a certified copy of the decree. If the delay is calculated from the date when the decree was ready, the delay will be only 108 days. The learned counsel also invited my attention to the merits of the matter by contending that the residential building which is situated in plaint A schedule property is allotted to the plaintiff without assigning special reasons. It is the first defendant and his family who have been residing in the residential building and the plaintiff has been residing in Shimoga. 5. On the other hand, the learned counsel for the respondents contended that the delay was not properly explained by the appellant in the application to condone delay. The First Appellate Court specifically found that all the documents produced by the appellant with respect to his ailments do not relate to the period of delay. 6. I have considered the rival contentions. 7. The Final Decree was passed on 15.06.2019. The Appeal was filed only on 12.10.2020. The application for Final Decree was submitted on 11.09.2020 and the same was delivered on 30.09.2020. The contention of the appellant is that he had medical issues that RSA NO. 40 OF 2022 5 2025:KER:24649 prevented him from prosecuting the Appeal by filing the same within time. He has produced certain medical records before the First Appellate Court. The First Appellate Court found that the said medical records do not relate to the period during which the delay occurred. A specific finding was entered into by the First Appellate Court that the records would show that he was treated for cardiac problems in the year 2010 and thereafter he was treated only on 13.09.2020. The delay which is to be explained by the appellant is for the period from 15.06.2019 to 12.10.2020. The aforesaid explanation does not cover the period from 15.06.2019 to 12.10.2020. It is revealed that he had been participating in the Final Decree proceedings. The Final Decree was engrossed on non- judicial stamp paper on 28.11.2019. It is clear from the said fact that only about a year after engrossing the final decree in stamp paper, the appellant thought of filing an Appeal before the First Appellate Court. The appellant could not substantiate any sufficient cause which prevented him from filing the appeal within time. Since the Final Decree was engrossed on the stamp paper much before the filing of the Appeal and the proceedings are concluded, I find that there are clear laches on the part of the appellant in not filing the RSA NO. 40 OF 2022 6 2025:KER:24649 appeal within the limitation period. I do not find any ground or reason to interfere with the order passed by the First Appellate Court. Accordingly, the Regular Second Appeal is dismissed. Sd/- M.A.ABDUL HAKHIM JUDGE Shg/XX