The right to appeal should not be denied on technical grounds, emphasizing a liberal approach to delay condonation in pursuit of substantial justice.

ORDER

This civil revision petition has been filed challenging the order dated 20.07.2023 passed by the learned Principal District Judge, Salem, dismissing the application in I.A.No.1 of 2023 in the unnumbered appeal suit of 2023 by the 1^st defendant in the suit under Order XLI and Rule 3(A) of CPC praying to condone the delay of 634 days in filing the appeal.

2. The revision petitioner is the 1st defendant, the respondents 2 and 3 are the defendants 2 and 3, and the 1st respondent is the plaintiff in O.S.No.67 of 2008.

3. The said suit was filed seeking a preliminary decree for partition and division of the suit properties into four equal shares, allotment of one such share to the plaintiff, separate possession of the allotted share, and for mesne profits.

4. The contention of the 1^st defendant is that the suit was decreed on merits on

18.08.2009, and the 1st defendant’s appeal in A.S.No.972 of 2009 was dismissed. Based on the preliminary decree, a final decree was passed on 12.02.2021 in O.S.No.379 of 2010 on the file of the II Additional Subordinate Jugde, Salem, which was contrary to the judgment in the appeal. Believing an appeal would be filed by his counsel, the 1st defendant waited, but later learned from local counsel that the appeal would lie before the District Court, not the High Court. Due to delay in retrieving the case bundle from earlier counsel, who claimed it was misplaced, the papers were received only on 28.11.2022, and an appeal was filed immediately thereafter. The delay of 634 days was neither wilful nor wanton, and if not condoned, would cause irreparable hardship to the

1st defendant.

5. The contention of the plaintiff is that the petition is false, misleading, and not maintainable either in law or on facts. The allegation that the final decree is contrary to the judgment in A.S.No.972/2009 is baseless and irrelevant. The petitioner, who has not paid court fees for his share and is enjoying the benefits of others’ shares, falsely claims to have been misled by his counsels regarding the forum for filing the appeal. It is highly improbable that the Chennai counsel retained the case bundle for over 15 months without action, and the entire narrative appears fabricated to justify the inordinate delay of 634 days, which remains unexplained and unjustified. This respondent has already initiated execution proceedings in E.P.No.285/2022. Hence, the petition deserves to be dismissed with costs.

6. The contention of the 3^rd defendant is that the petition is false, frivolous, and not maintainable in law or on facts. The allegation that the final decree dated 12.02.2021 is contrary to the High Court’s judgment is baseless and irrelevant. The petitioner has not paid the court fees for his allotted share and continues to enjoy the common properties at the expense of other co-sharers. His claim that he was misdirected by counsels at Salem and Chennai to file the appeal before the High Court is unsubstantiated and appears to be a concocted story to justify the inordinate delay. There is no evidence of the alleged advice, handover, or return of the case bundle, nor any record of a returned appeal from the High Court. The petition is clearly an attempt to delay execution proceedings already initiated in E.P.Nos.290/2022 and 351/2022. The reasons cited for the delay are false and untenable. Hence, the petition deserves to be dismissed.

7. The trial court, after considering the averments, dismissed the delay condonation application. Aggrieved by the said order, the 1st defendant has filed the present revision petition seeking to set aside the impugned order, condone the delay, and direct the Principal District Judge to n