UPPUGANDLA ANANTHA REDDY Vs. UPPUGANDLA BHAGYAMMA

JUDGEMENT

(1.) This is a petition filed by the petitioner-appellant to condone the delay of 233 days in filing the appeal.

(2.) The petitioner (appellant) is the 2nd defendant in O.S. No.63 of 1980 on the file of the Court of the Subordinate Judge, Karimnagar. Respondents 1 to 3 are the plaintiffs in that suit. Respondents 2 and 3 are the children of the first respondent. First respondent is the widow of Narayana Reddy, deceased brother of the petitioner-appellant. Petitioner-Appellant and Narayana Reddy (husband of the 1st respondent) are the sons of Pedda Bala Raju, who is the first defendant in the suit. The suit is filed by the respondents 1 to 3 initially against three defendants, i.e., Pedda Balaraju, (1st defendant), the appellant (2nd defendant) and Banda Lachamma (3rd defendant) for partition of their 1/3rd share in the properties specified in the schedule appended to the plaint, and for cancellation of the sale deed dated 28-4-1980 executed by the appellant in favour of Banda Lachamma, the 3rd defendant. Subsequently defendants 4 to 7 were added as parties to the suit. During the pendency of the suit, Pedda Balaraju (1st defendant) died. After trial, the trial Court passed a preliminary decree for partition of the plaint schedule properties into three equal shares and for allotment of one such share to the respondents 1 to 3, and ordered cancellation of the sale deed dated 28-4-1980 after declaring it null and void and not binding on the respondents 1 to 3. That preliminary decree has not been appealed against by any of the parties to the suit, and so it became final. Thereafter, respondents 1 to 3 (plaintiffs) filed I.A. No.1/1995 seeking appointment of a Commissioner to propose a division of the plaint schedule properties into two equal shares, and also filed I.A. No.224/97 for passing a final decree for division of their half share in the plaint schedule properties. A Commissioner appointed in I.A. No.1/1995 filed his report. Since no objections were filed to the report of the Commissioner, it was accepted and by its order dated 3-4-1997 in I.A. No.224/1997 the Court below passed a final decree as per the division proposed by the Commissioner. Questioning the said final decree, this appeal is preferred by the 2nd defendant with CMP No.12020 of 1999 alleging that there is a delay of 233 days in preferring the appeal, and the same may be condoned for the reasons mentioned in his affidavit filed in support of the said petition.

(3.) The reason for the delay mentioned in the affidavit is that notice in I.A. No.1/1995 was not served on him, but is said to have been served on one Sudhakar Reddy, who is in no way connected with him, and that on the basis of the said incorrect endorsement of the Process Server, the trial Court proceeded to appoint a Commissioner without proper notice to him, and that after the Advocate-Commissioner filed his report, respondents 1 to 3 filed I.A. No.224/1997 for passing a final decree, in which petition also no notice was issued to him. It is stated that since there was an amendment of the names of defendants 3 to 5 on 3-8-1998, limitation started from 3-8-1998 from which date there is delay of 233 days in presenting the appeal, and sought condonation of that delay. Respondents 1 to 3 opposed the application contending that the appellant had notice of I.A. 1/1995, and was present at the time of inspection of the lands by the Commissioner and that the delay in presentation of the appeal is not of mere 233 days but is more than 2 years, which is not properly explained and so petition is liable to be dismissed.