G NATARAJAN Vs. G SUBRAMNIAN

JUDGEMENT

(1.) THE order passed in I.A.No.1330 of 2004 in ASCFR.No.16723 of 2004 on the file of the Principal District Judge, Coimbatore, is under challenge in this revision. I.A.No.1330 of 2004 was filed by the plaintiff in O.S.No.743 of 1976 / appellant in unnumbered ASCFR.No.16723 of 2004 under section 5 of the Limitation Act, 1963 to condone the delay of 245 days in preferring the appeal. THE suit is for partition. THE trial Court has decreed the suit and a preliminary decree for partition was passed. THEreafter, the plaintiff has not filed any petition for passing final decree. I.A.No.1087 of 2001 for passing final decree was filed by the second defendant in O.S.No.743 of 1976, in which the plaintiff was shown as the first respondent. He participated in the final decree proceedings and a final decree has been passed on 17.03.2003.

(2.) THE grievance of the revision petitioner is that in the final decree proceedings, he was not awarded due share value in respect of his share. Aggrieved by the decree in the final decree proceedings in I.A.No.1087 of 2001 in O.S.No.743 of 1976, the plaintiff in O.S.No.743 of 1976 had preferred an appeal wherein there was a delay of 245 days in preferring the appeal. While dismissing I.A.No.1330 of 2004 the petition filed under Section 5 of the Limitation Act, 1963 to condone the delay of 245 days in preferring the appeal, the learned Principal District judge Coimbatore, had observed that there is no acceptable reasoning given in the affidavit filed by the petitioner in I.A.No.1330 of 2004 to condone the delay of 245 days in preferring the appeal and accordingly dismissed the petition.

(3.) ONLY under similar circumstances, the delay in filing the certified copy of the order was condoned by the Honourable Apex Court in AIR 1969 SC 575 (Shakuntala Devi Jain Vs. Kuntal Kumari and others), following the dictum in 1890 ILR Mad 268 (Krishna Vs. Chathappan), as follows:-