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Judgment
K. Abraham Mathew, J.—The suit in question O.S. 121/1998 was for partition. Some of the defendants challenged the preliminary decree for partition in A.S. 38/2003. It was dismissed for default on 13.8.2008. The appellants 1, 2, 4, 7, 10 & 12 to 14 filed I.A.N. 1412/2010 to restore the appeal to file. They also filed I.A. 1413/2010 to condone the delay of 715 days in filing restoration petition. Evidence was recorded. The 7th appellant was examined as PW1 and Exts. A1 & A2 were marked. The learned Sub Judge held that the petitioners failed to explain the delay in filing the restoration application. So she dismissed both applications. This is challenged in this appeal filed by the 7th appellant in the court below.
Heard.
There were 14 appellants in the court below. On 15.9.2008 the 8th appellant filed an application to restore the appeal to file. It was dismissed for default. The finding has become final.
Thereafter some other appellants filed an application for the same purpose, the order in which is impugned in this appeal. The reason for the other appellants not joining the application does not find a place in the appeal memorandum. In the argument also the reason is not mentioned.
The case of the appellants in the court below is that the 7th appellant had entrusted the conduct of the appeal with the 8th appellant and she colluded with the respondents, which resulted in dismissal of the appeal for default. It is further stated that the 7th appellant was in military service and he came to know about the dismissal of the appeal only after his return to his native place on his retirement from service on 31.05.2010.
The appellants have no case that they except the 7th appellant were not aware of the dismissal of the appeal for default.
It has come out in the evidence of the 7th appellant, who was examined as PW1 that every year he was granted vacation for 30 days and he came to the native place during Onam holidays availing himself of the vacation.
In the cross-examination, PW1 stated that he has no objection to the allotment of property to the 21st defendant and others. But he did not respond to the question whether he had any objection to the allotment of property to the plaintiff. It was further brought out in his cross-examination that he was not aware of the claims made by him in the suit and whether the property had been delivered pursuant to the execution petition filed after the passing of the final decree.
It is not in dispute that final decree was passed and some properties were delivered in two execution petitions filed in 2010. The delivery was effected in 2011 & 2013.
The facts brought out in the evidence of the appellants certainly disclosed that the 7th appellant was not serious in conducting the case. It is even doubtful whether he had any personal interest in the case. His inconvenience alone has been stated for the delay in filing the restoration petition, which is not acceptable. There is no whisper about the difficulty of the other appellants in filing the restoration petition on time. The learned Sub Judge was fully justified in holding that there has not been proper explanation for the delay and the attempt of the appellants was only to delay the delivery of the properties.
In the result, this appeal is dismissed.