The court held that the appellants' explanation for the delay in filing the appeal was not satisfactory and that they were aware of the judgment and decree of the lower appellate court, as evidenced by the fact that the 1st appellant had given a memo to the advocate commissioner in connection with final decree proceedings.

JUDGMENT

Subba Reddy Satti, J. - Defendants in the suit filed the above second appeal. Respondent/plaintiff filed suit O.S.No.300 of 2005 on the file of additional Senior Civil Judge, Chittoor, and seeking partition of plaint schedule properties.

2. Pleadings, in brief, germane to decide this interlocutory application, are that the plaintiff is son of T.Raghunatha Naicker, through his first wife T.Lakshmamma, who left the company of T.Raghunatha Naicker and married one Munaswamy Naicker and has been residing with him in Tamilnadu. T.Raghunatha Naicker married 2nd defendant and begot 1st defendant through her. according to plaintiff, plaint schedule properties are joint family properties, and he is entitled to share in the said properties. according to 1st defendant, T.Raghunatha Naicker during his life time executed Ex.B-1 registered gift deed dated 29.05.2000 and she accepted the gift and she has been in possession.

3. Trial Court by judgment dated 30.08.2013 dismissed the suit. aggrieved by the same, plaintiff filed a.S.No.9 of 2015 on the file of VIII additional District Judge, Chittoor. The Lower appellate Court by judgment dated 09.01.2018 allowed the appeal and passed preliminary decree. assailing the said judgment and decree, the above second appeal is filed with a delay of 706 days.

4. In the affidavit filed in support of the petition, appellants contended that though Lower appellate Court pronounced judgment on 09.01.2018, there was no communication to them from their counsel regarding judgment, since they are not residing in the village for some time; that after noticing the steps taken by the respondents for measuring the schedule properties, they enquired their counsel and came to know about the judgment of lower appellate Court; that due to Covid-19 pandemic, they could not file second appeal by engaging counsel; that immediately after pandemic came down, they engaged counsel and filed the above second appeal and in the process delay of 706 days occurred.

5. This Court ordered notice to respondent on 08.07.2021. Respondent appeared through counsel and filed counter.

6. In the counter affidavit filed by respondent, it was contended that pursuant to preliminary decree, I.a.No.428 of 2019 in O.S.No.300 of 2005 on the file of additional Senior Civil Judge, Chittoor, was filed for passing of final decree. When the learned advocate Commissioner issued notice to inspect the warrant schedule property on 21.03.2020 at 9.30 a.m., the 1st appellant (1st defendant) herein gave memo requesting the advocate Commissioner to postpone the execution of warrant on the ground that her counsel went to apollo Hospital, Chennai for check up. Thus, respondent prayed to dismiss I.a.

7. as can be seen from the certified copy of judgment in a.S.No.9 of 2015, Lower appellate Court pronounced the judgment on 09.01.2018. application to get certified copy was filed on 10.06.2021, after 3 years 5 months. The explanation offered by the appellants that there was no communication about the judgment of the appellate Court and they are not residing in the village for some time is not true and correct in the light of 1st appellant giving memo to the advocate commissioner on 23.01.2020, when he visited the schedule properties in final decree proceedings in I.a.No.428 of 2019.

8. appellants, on oath, made false statement and are praying the Court to condone the delay of 706 days in filing the appeal. In fact, as can be seen from the record, judgment of the lower appellate Court was pronounced on 09.01.2018 and application to get certified copy was filed on 10.06.2021, thus delay in filing appeal should be 1255 days. However, the delay was restricted to 706 days by virtue of order passed by the Hon'ble apex Court suspending limitation from 23.03.2020 in view of Covid-19 pandemic.

9. While considering the application for condonation of delay, the Court has to see whether the delay is inordinate or delay is few days and that reasons assigned are valid and cogent. P