Saragadam Satyanarayana vs Theeda Kanaka Mahalakshmipathi ...
2021 Latest Caselaw 3964 AP

          HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI

                      MAIN CASE No.A.S.No.645 of 2015
                                PROCEEDING SHEET

Sl.                                                                                Office
                                             ORDER

No      DATE                                                                       Note
12    6.10.2021 RRR, J

                           I.A.Nos.1,2 & 3 of 2019

The respondent had filed O.S.No.400 of 2007 in the Court of the XIII Additional District Judge, Visakhapatnam for declaration of title and recovery of 333 sq.yards of land in plot No.366 old survey No.185, New Survey No.86 of Gajuwaka Village and Panchayat, Visakhapatnam District. This suit was decreed by a judgment and decree dated 27.04.2015.

Aggrieved by the said judgment and decree, the defendants 1 and 2 had filed the present appeal before this Court. This Court by an order dated 29.09.2015 had granted stay of operation of the judgment and decree of the trial Court subject to the condition of the petitioners, paying suit costs within a period of four weeks from the date of the order and continuing to deposit Rs.2,500/- per month to the credit of the suit till the disposal of the appeal.

The petitioners have filed the present application on the ground that the 2nd appellant in the appeal had passed away on 31.10.2015 and they were unaware of the pendency of the appeal and came to know of the said pendency only when the 1st appellant, who is the father of the 2nd appellant, had informed the petitioners in the present petitions that he had received a notice from the trial Court requiring his presence in the Execution Petition, filed for executing the said judgment and decree of the trial Court. The petitioners state that on account of this information being received by them only in

October, 2018, they have approached this Court by way of the present applications to implead them as the legal representatives of the deceased 2nd appellant and to set aside the abatement of the appeal on account of the demise of the 2nd appellant and to condone the delay in filing the present applications.

The respondent has filed counter affidavit in these applications.

The contention of the respondent is that the primary ground of the petitioners that the 1st appellant was unable to move and the entire litigation was being looked after by the 2nd appellant is in correct as the 1st appellant is fully active and has been appearing before the trial Court in the execution petition.

The learned counsel for the respondent would also reiterate the contentions raised in the counter affidavit and submit that apart from the entire delay in the filing of the petitions, the petitioners have not explained the delay from October, 2018 to January, 2019 as the petitioners themselves admit that they have notice of this appeal in October, 2018 itself.

Heard Sri V.V.Satish, learned counsel for the petitioners and Sri S.V.R.Subrahmanyam, learned counsel for the respondent.

While it is true that the requirement of explaining every day's delay cannot be waived, it must also be taken into account that the L.Rs proposing to implead themselves as appellants in the present appeal are the wife and daughters of the deceased 2nd appellant and same lee way has to be given in such applications. The explanation that they were not fully cognizant of the litigation being conducted by the 2nd appellant and his father and the pendency of the appeal came to

their knowledge in October, 2018 cannot be discarded likely. Further, the time between October, 2018 and January, 2019 is not such an extended period. It may also be kept in mind that the High Court closes for the Sankranthi Vacation in January and the applications appear to have been filed immediately upon reopening of the Sankranthi vacation.

In these circumstances, these applications are allowed setting aside the abatement of the appeal on account of both of the 2nd appellant, condoning the delay in filing applications and allowing the petitioners herein to come on record as appellants 3 to 5.

However, in view of this delay, it would also be appropriate to award costs of Rs.5,000/- to the respondent.

Accordingly, the applications are allowed subject to payment of costs of Rs.5,000/- to the respondent and filing proof of payment within three weeks from today.

_________ RRR, J RJS