Laxman and Dharmanna vs Yellappa and Others

B. Sreenivase Gowda, J.—This second appeal is by the defendants 7 and 9 in the suit challenging the concurrent findings of the Courts below, whereby the trial Court decreed the suit of the plaintiff holding plaintiff has got 1/5th share and defendants 1 and 2 together have got 1/5th share, defendants 3 to 6 together have got 1/5th share and defendant No. 7 and L.Rs. of defendant No. 8 and 9 have got 1/5th share and the same was confirmed by the lower appellate Court. Along with the appeal, an application under Sec. 5 of the Limitation Act was filed praying to condone the delay of 237 days in filing the appeal. It is opposed by the respondents by filing statement of objections.

Appellants 1 and 2 are defendants 7 and 9 respectively in the suit. During the pendency of this appeal, first appellant died and second appellant was permitted to be treated as the L.R. of first appellant and the cause title of the appeal memo was amended accordingly.

I have heard the learned Counsel for the parties and perused the judgments and decrees of the Courts below.

Deceased first appellant who has sworn to the affidavit filed in support of the delay application, in para 2 of his affidavit has stated that this second appeal is preferred challenging the concurrent judgments and decrees of the Courts below and averments made in the main appeal may be read as part and parcel of this affidavit. In para 3 of his affidavit, he has stated that plaintiff has miserably failed to prove that the suit properties are joint family properties and evidence on record shows there was partition in the joint family by metes and bounds in the year 1956 and parties are enjoying their respective shares, evidence also shows properties in para 1(c) and (e) are self acquired properties of defendant No. 7 and Courts below are not justified in decreeing the suit. In para 4 it is stated, if delay is not condoned appellants will be put to great hardship.

So reasons stated in paras 2, 3 and 4 of the affidavit do not pertain to delay in preferring the appeal.

In para 5 of his affidavit he has stated he is a resident of Teragaon village, Haliyal taluk and he was not aware of the impugned judgment and decree passed by the lower appellate. During the third week of September, 2007 when he had gone to his Advocate''s office, then his advocate informed him about the disposal of the appeal. Thereafter, he had requested his Advocate to make an application for certified copy of the judgment and decree and inform him when he obtains the same. Accordingly, his counsel had made an application for certified copy of the judgment on 22-9-07 and the same was ready on 24-9-07. He was aged about 65 years and was suffering from old age ailments. Only when he contacted his Advocate during the last week of January, 2008, his Advocate informed him that he had obtained certified copy of the judgment and decree of the first appellate Court and had written a letter to him about the same. As he was suffering from severe illness, he could not prefer this appeal till the last week of March, 2008.

The lower appellate Court dismissed the appeal on 5-6-07. According to the averments in para 5 of the affidavit, first appellant came to know about the dismissal of the appeal during the third week of September, 2007 and the reason that he was suffering from old age ailments is not supported by producing medical certificate issued by any doctor. Delay application is seriously opposed, stating reasons stated in the affidavit are false Even the alleged letter stated to have been written by his Counsel informing that he has secured certified copy of the judgment is not produced or an affidavit of his Advocate is filed to that effect. On the other hand, application for securing copy of the judgment and decree of the lower appellate Court was filed on 22-9-07 and the same was obtained on 24-9-07. Whereas this appeal was presented on 17-4-08 i.e. after seven months after securing the copy. Both the appellants were actively contesting the FDP and the execution petition filed by the plaintiffs. From this it is clear that the reasons stated in the affidavit filed in support of the delay application are nothing but falsehood and they do not constitute sufficient cause to condone inordinate delay in filing the appeal and therefore delay application is liable to be rejected.

Even on merits it is submitted by the learned Counsel for the respondents that pursuant to the preliminary decree passed by the trial Court and confirmed by the lower appellate Court, FDP is initiated wherein ADLR was appointed as Court Commissioner to measure the suit properties and submit report regarding division of suit properties among the parties as per the preliminary decree passed by the trial Court. Accordingly, the Court Commissioner measured the suit properties in the presence of parties and submitted his report and sketch and the same was accepted and final decree was ordered to be drawn in terms of the report and sketch submitted by the Court Commissioner. Since the appellants failed to deliver possession of the properties allotted to the share of the plaintiff under the final decree, the plaintiff filed an Execution petition in E.P. No. 138/2008, wherein delivery warrant was issued and possession of the property allotted to the share of the plaintiff was delivered to him. Therefore, this second appeal has become infructuous and is liable to be dismissed as infructuous.

For the reasons stated above, appeal is dismissed both on the ground of delay and also on the ground that it has become infructuous. In view of dismissal of appeal, I.A. for stay does not survive and it is dismissed.