Kerala High Court
Antony vs Mary Joseph (Died) on 5 June, 2025
RSA No.305 of 2025 1 2025:KER:39894
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
RSA NO. 305 OF 2025
AGAINST THE JUDGMENT AND DECREE DATED 20.03.2025 IN AS NO.41
OF 2024 OF ADDITIONAL DISTRICT COURT - II, NORTH PARAVUR ARISING
OUT OF THE JUDGMENT AND DECREE DATED 12.04.2024 IN OS NO.338 OF 2011
OF MUNSIFF COURT,ALUVA
APPELLANT(S)/APPELLANT/DEFENDANT/JUDGMENT DEBTOR :
ANTONY
AGED 53 YEARS
S/O. KUNJU VAREED,
PAINADATH NADUVILE HOUSE,
KARUKUTTY VILLAGE, KARUKUTTY DESOM,
ALUVA TALUK, ERNAKULAM, PIN - 683576
BY ADVS.
SMT.BOBBY RAPHEAL.C
SRI.E.C.POULOSE
RESPONDENT(S)/RESPONDNETS/RESPONDENTS/PLAINTIFF &
STRANGER/DECREE HOLDERS :
1 MARY JOSEPH (DIED)
XXXXXXXXXXXXX, PIN - 683576
2 JESTIN JOSEPH
S/O OUSEPH, PYNADATH NDUVILE HOUSE,
KARUKUTTY DESOM, KARUKUTTY VILLAGE,
ALUVA TALUK, REPRESENTED BY POWER OF
ATTORNEY HOLDER SIJIN KUMAR,
AGED 48 YEARS, S/O. CHIRAKKAL GEORGE,
KARAYAMPARAMBU DESOM, KARUKUTTY VILLAGE,
KARUKUTTY DESOM, ALUA TALUK,
ERNAKULAM DISTRICT, PIN - 683576
RSA No.305 of 2025 2 2025:KER:39894
BY ADVS.
SHRI.ANIL KUMAR SREEDHARAN
SHRI.GUNAVARDHANAN M.N.
SHRI.BIJOY S.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
HEARING ON 05.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA No.305 of 2025 3 2025:KER:39894
EASWARAN S., J.
--------------------------------
R.S.A. No.305 of 2025
------------------------------------------
Dated this the 5th day of June, 2025
JUDGMENT
Appellant herein is the defendant in O.S. No.338 of 2011 on
the files of the Munsiff Court, Aluva. The aforesaid suit was filed
by the respondent/plaintiff for mandatory injunction which was
settled in Lok Adalath. Alleging that there is non-compliance of the
terms and conditions of the settlement, the plaintiffs again filed an
Execution Petition, which was allowed by the executing court.
Aggrieved by the order of the executing court, the
appellant/defendant preferred A.S. No.41 of 2024 before the
Additional District Court-II, North Paravur. Along with the appeal,
an application, I.A. No.1 of 2024 for condonation of delay of 71 days
was also preferred. By order dated 20.3.2025, the Additional
District Judge-II, North Paravur dismissed the Interlocutory
Application. Accordingly, the appeal was also dismissed. Aggrieved
by the order of the Additional District Judge-II, North Paravur, in
dismissing the appeal, the appellant has preferred this appeal by
raising the following substantial questions of law:
RSA No.305 of 2025 4 2025:KER:39894
(i) Whether the impugned order of the Trial Court and First
Appellate Court is legally sustainable?
(ii) Whether the Trial Court is not erred in entertaining the
Execution Petition filed even after complying the terms of the
settlement took place in the Lok Adalath?
(iii) Whether the Trial Court and First Appellate Court went
wrong in considering the fact that the Decree Holder is trying
to adjudicate fresh cause of action by filing execution and
thereby caused miscarriage of justice to the appellant?
(iv) Whether the Trial Court is not erred in dismissing E.A.
No.32/2024 by saying that appellant has not challenged the
order in E.P. No.84/2019, which is not at all possible in a case
settled in the Adalath?
2. The appeal was admitted by this Court by order dated
29.5.2025 and notice was issued to the respondents.
3. Heard Sri. Boby Raphel, the learned counsel appearing for
the appellant and Sri. Anil Kumar Sreedharan the learned counsel
appearing for the 2nd respondent.
4. Sri. Anil Kumar Sreedharan, the learned counsel appearing
for the 2nd respondent, submitted that the appeal preferred against
the order passed by the executing court is not maintainable, and,
therefore, even if the same is sent back, no useful purpose would
be served.
RSA No.305 of 2025 5 2025:KER:39894
5. On a consideration of the rival submissions raised across
the Bar, this Court is of the considered view that the first appellate
court was not justified in rejecting the application for condonation
of delay. It is pertinent to mention that the delay in filing A.S. No.41
of 2024 is only 71 days. The question as to whether the first
appellate court in a civil litigation could reject an application to
condone delay and consequently dismissed the appeal itself came
up for consideration before this Court in George Antony vs. Albert
Antony (RSA No.233 of 2025) and, this Court, by judgment dated
27.5.2025, held that as far as civil litigations are concerned the
endeavour of the Court should be proved to put finality to the
dispute and not to dismiss the application for condonation of delay
by a mechanical order. In view of the entire facts pleaded before
this Court, this Court finds that the decision in George Anotony
(Supra) will squarely apply to the facts of this case. The refusal on
the part of the Additional District Judge-II, North Paravur in not
condoning the delay and considering the appeal on merits is per se
unsustainable. Therefore, this Court finds that the Additional
District Judge-II, North Paravur has erred egregiously in
dismissing the application for condonation of delay and
consequently the appeal itself.
RSA No.305 of 2025 6 2025:KER:39894
6. As regards the contention of the respondents that the
appeal itself is not maintainable, this Court finds that the said issue
is not germane to the issue raised in the present appeal. The
maintainability of the appeal should regain the attention of the
Additional District Court- II, North Pravur, consequent to the
appeal being restored to file. Therefore, the respondent is always
at liberty to raise the question regarding the maintainability of the
appeal by raising appropriate submissions in this regard.
7. Resultantly, this Court finds that the appellant is entitled
to succeed. Therefore, answering the question of law in favour of
the appellant, this RSA is allowed by setting aside the order dated
20.3.2025 in I.A. No.1 of 2024 in A.S. No.41 of 2024 and the order
dated 20.3.2025 dismissing the appeal itself. Consequently, the
delay in preferring the appeal stands condoned. The Additional
District Judge-II, North Paravur is directed to restore A.S No.41 of
2024 to the files and consider the same in accordance with law on
merits and pass final orders within a period of six months from the
date of receipt of a copy of the judgment. It will be open for the
Additional District Judge-II, North Paravur to decide the
maintainability of the appeal as a preliminary issue raised by the
respondents. Until such time, the final order in AS No.41 of 2024
RSA No.305 of 2025 7 2025:KER:39894
is passed, all further proceedings in E.P. No.84 of 2019 in
O.S.No.338 of 2011 on the files of the Munsiff Court, Aluva will
stand stayed .
Sd/-
EASWARAN S.
JUDGE
NS
