MADHAVI @ NARAYANI Vs. SAVITHRI

JUDGEMENT

(1.) The second defendant in O.S.No. 51 of 1980 on the file of the Subordinate Judge's Court, Kozhikode, is the appellant. The suit was one for partition. The Trial Court passed a preliminary decree for partition. As against the said decree, appellant filed an appeal A.S.No. 193 of 1987, before the District Court, Kozhikode. As there was delay in filing the said appeal, an application for condonation of delay, I.A.No. 1562/87, was also filed. The said application was dismissed by the court below as per order dated 9-12-1988. Consequently the appeal was also dismissed on the same day. It is against the said judgment and decree this Second Appeal has been filed.

(2.) The appellant claimed one - third share in the plaint schedule properties available for partition. However, by the preliminary decree plaint A schedule properties were directed to be divided into two equal shares and one such share be allotted to the plaintiff and the other share to the first defendant. The appellant did not get any share in the suit property. It was found that she was only entitled to get maintenance for her life out of income from the plaint schedule properties. The counsel therefore submits that the appellant is very much aggrieved by the preliminary decree inasmuch as no share has been allotted to her. However, the merits or otherwise of the contentions urged on behalf of the appellant does not call any consideration at this stage. In this appeal what is required to be decided is only the question relating to the dismissal of the application for condonation of delay.

(3.) An exparte decree in O.S.No. 51/80 was passed by the Trial Court on 19-11-1982. an application, I.A.No. 6221 of 1982, for setting aside the exparte decree was filed on 18-12-1982. The said application was dismissed on 24-02-1983. As against the said order, appellant filed C.M.A.No. 147 of 1983 before this court on 28-06-1983. Ultimately, after the hearing, the C. M. A. was dismissed on 16-03-1987. It appears, the appellant thereafter filed an application for certified copy of the judgment and decree in O.S.No. 51/80 for the purpose of filing the appeal. After obtaining the certified copy, appeal was filed on 07-08-1987. Since it was filed out of time, I.A.No. 1562 of 1987 was filed under S.5 of the Limitation Act for condoning the delay in filing the appeal. The lower appellate court observed that the period during which the appellant had been prosecuting the proceeding for setting aside the exparte decree could be excluded as it would constitute 'sufficient cause' within the meaning of S.5 of the Limitation Act. However, the court further observed that the appellant is bound to explain the delay in filing the appeal after the final disposal of the said proceeding. The lower appellate court finally dismissed the petition on the ground that the delay after the final disposal of the C.M. Appeal has not been properly explained.