PONNAMMA PILLAI Vs. VELAYUDHAN

JUDGEMENT

(1.) The second appeal and the revision petition arise from the same proceedings, namely, A. S. No. 55 of 1975 and an interlocutory application, I. A. No. 333 of 1975 filed therein, both by the defeated plaintiffs in the suit. The plaintiffs' suit was for redemption of Ext. A1 otti and Kuzhikanam transaction dated 6-6-1940. Relying on the Full Bench decision of this Court in Rev. Fr. Victor Fernandez v. Albert Fernandez ( 1971 KLT 216 ) (FB) the Trial Court dismissed the suit holding that the defendants are entitled to fixity of tenure. The Trial Court held that the transaction falls under S.2(39A) and 2(56) of the Kerala Land Reforms Act, 1963. The Trial Court dismissed the suit aforesaid on 25-7-1972. Accordingly, the plaintiffs applied for copies of the judgment and decree of the Trial Court for preferring appeal against the same. They obtained copies of the judgment and decree in the suit on 9-1-1973. It is their case that since the decision in Rev. Fr. Victor Fernandez v. Albert Fernandez (1971 KLT 216) (FB) prevailed the field, they were advised by their counsel that there was no good of filing any appeal. For that reason, they kept quiet for about two years.

(2.) The decision in Rev. Fr. Victor Fernandez v. Albert Fernandez (1971 KLT 216) (FB) was overruled by this Court by the decision in Vivekanadan v. Sadasivan ( 1975 KLT 1 ) (FB), a decision by a Full Bench of five Judges. This decision was rendered on 27-9-1974 A few months thereafter, to be precise, on 30-1-1975 the plaintiffs preferred A. S. No. 55 of 1975 before the lower appellate court. Along with the said appeal the plaintiffs also filed I. A. No. 333 of 1975 praying that the delay in filing the appeal be condoned under S.5 of the Limitation Act, 1963. The lower appellate court dismissed I. A. No. 333 of 1975 by its order dated 7-6-1976. This is the order sought to be revised in the revision petition. Consequent upon the dismissal of I. A. No. 333 of 1975, the lower appellate court dismissed A. S. No. 55 of 1975 also. The said decision is impugned in the second appeal.

(3.) The only question that arises for consideration is as to whether the dismissal of I. A. No. 333 of 1975 by the lower appellate court is correct. If the order on that interlocutory application is held to be correct then the decision in A. S. No. 55 of 1975 dismissing that appeal has to be upheld. If the order on the interlocutory application is held to be unsustainable then the decision in A. S. No. 55 of 1975 has to be set aside and the lower appellate court has to be directed to consider the same on merits.