NISHANTH Vs. SOMAN

JUDGEMENT

(1.) Order passed on 10th August, 2018 is hereby recalled.

(2.) An application filed under Section 5 of the Limitation Act, 1963, seeking condonation of 895 days delay in filing the appeal comes up for consideration. Appellant is the first defendant in O.S No.1053 of 2006 before the Court of Principal Subordinate Judge, Thrissur. The suit is one for cancellation of a sale deed executed by the plaintiff (first respondent) in favour of the appellant. Admittedly, appellant is the nephew of the first respondent. The appellant represented to the first respondent that he had to show some assets to get an agency from Indian Oil Corporation. Ext.A1 sale deed was executed by the first respondent in the name of the appellant to help him out. Appellant agreed at the time of execution of the document that the property would be reconveyed to the first respondent as soon as the agency was allotted to him. According to the first respondent, possession of the property was never handed over to the appellant. There was no intention to effectuate the sale. Despite various requests by the first respondent, the appellant did not reconvey the property. Besides, he had created a mortgage of the property with the second defendant bank (2 nd respondent herein). It is further contended that the document happened to be executed by the first respondent as the appellant had practised fraud on him and misrepresented the facts. Hence, he prayed for cancellation of the document.

(3.) The suit was resisted by the appellant on many grounds, including the ground that Ext.A1 is a validly executed document and title to the property had passed to him. The bank also supported the appellant's contention since the appellant had created an equitable mortgage over the property in favour of the bank.