RAMAYYAN Vs. ASHTAMOORTHI NAMBOODIRI

JUDGEMENT

(1.) The Respondent in A.S. No. 420 of 1961 of the District Court of Kottayam has filed this Civil Miscellaneous Appeal questioning the correctness of an order of injunction passed against him pending the appeal. It is necessary to note a few facts to understand the appellants contentions.

(2.) The appellant was the defendant in the suit, which was dismissed for default. An application for restoring the suit was filed, which was also dismissed. Thereafter the plaintiffs filed a Civil Miscellaneous Appeal against the dismissal of the petition for restoration of the suit and also filed A.S. No. 420 of 1961 against the dismissal of the suit itself. , Along with the latter the plaintiffs filed an application for excusing the delay in filing the appeal and before that application was disposed of the learned District Judge has granted an injunction pending appeal, which is now being challenged before me.

(3.) The learned District Judge in Para.2 of his judgment observes that in such a case the appellant should not be without relief until the application to excuse the delay is disposed of and if he has made out a prima facie case for condoning the delay as well as for granting the injunction the injunction can be granted. According to the learned District Judge S.5 of the Limitation Act does not even contemplate the filing of an application and it only says that the appellant should satisfy the court that he has sufficient cause for not filing the appeal in time. It is in this view that the learned Judge has granted the injunction.