IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 624 of 2009()
1. KAMALAMMA, AGED 63 YEARS,
... Petitioner
2. DASAPPAN PILLAI, THULASEEDHARAN PILLAI,
3. DASAPPAN PILLAI BALACHANDRAN
4. DASAPPAN PILLAI SIVANKUTTY, AGED
5. KAMALAMMA USHAKUMARY, AGED 33 YEARS,
6. DASAPPAN PILLAI RAJENDRAN, AGED 30 YEARS
7. DASAPPAN PILLAI, ANILKUMAR, AGED
Vs
1. SANKARA PILLAI, CHELLAPPAN PILLAI,
... Respondent
2. KUTTY AMMA, AGED 82 YEARS,
For Petitioner :SRI.K.S.HARIHARAPUTHRAN
For Respondent :SRI.C.P.PEETHAMBARAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :11/01/2011
O R D E R
S.S.SATHEESACHANDRAN, J.
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R.S.A.NO.624 OF 2009
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Dated this the 11th day of January, 2011
J U D G M E N T
The appeal is directed against dismissal of first appeal by
the lower appellate court, consequent to the abatement of such
appeal on default of the appellant to take steps for impleading
the legal heirs of the 2nd respondent, who had passed away
pending the first appeal. Suit was one for redemption and it was
decreed in favour of the plaintiff, the 1st respondent before the
lower appellate court. On the death of the 1st respondent, the 2nd
respondent was impleaded as his legal heir in such appeal. That
2nd respondent had also passed away; but, the
appellants/defendants in the suit did not take appropriate steps
in time, but moved a petition later to set aside the abatement
condoning the delay. The application moved by the appellants
for setting aside the abatement having been dismissed by the
lower appellate court and appeal dismissed by that court as
R.S.A.NO.624/2009 2
abated, as if a second appeal would lie, the present appeal has
been preferred. The remedy available to the appellants in such a
case is to impeach the order passed under Rule 9 of Order XXII
of the Code of Civil Procedure by way of an appeal as provided
under Order XLIII Rule 1 (k) of the CPC. Realising that the
second appeal is not entertainable, the learned counsel for the
appellants sought for permission to withdraw the appeal, without
prejudice to his right to take recourse to the appropriate
proceedings for challenging the adverse decision rendered
against him by the court below. The learned counsel requested
for a grace period of one month to prefer the appeal against the
order of the court below as provided by law. On the facts
presented, as I find nothing to hold that there was lack of bona
fide on the part of the appellant though the appeal had been
presented without taking and considering due notice of the
provisions of the law the appellants are accorded permission to
prefer an appeal against the adverse order rendered by the court
below within a period of one month from the date of this
judgment. However, the entitlement of the appellant to seek
R.S.A.NO.624/2009 3
exemption of the period of prosecution of this appeal under
Section 14 of the Limitation Act, shall have to be considered in
the fresh appeal if any preferred as proposed.
Appeal is dismissed as withdrawn.
S.S.SATHEESACHANDRAN
JUDGE
prp
R.S.A.NO.624/2009 4