Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 31ST DAY OF JANUARY 2024/11TH MAGHA, 1945 AGAINST THE DECREE AND JUDGMENT IN AS 33/2023 OF ADDITIONAL DISTRICT COURT- III, ALAPPUZHA AGAINST THE DECREE AND JUDGMENT IN OS 242/2019 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA APPELLANT/APPELLANT/DEFENDANT: FEBY BERTIN AGED 42 YEARS D/O. BERTIN SABA GOMAS, DAFFODILS VILLA, SEAVIEW WARD, BAZAR P.O., ALAPPUZHA., BY ADVS. B.PRAMOD BIJU VIGNESWAR ATHUL M.V. RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1 BENOY BERTIN (DIED) S/O. BERTIN SEBA GOMAS, DAFFODILS VILLA, SEAVIEW WARD, BASZR P.O., ALAPPUZHA., 2 BERTIN SABA GOMAS AGED 76 YEARS S/O. SABA GEORGE GOMAS, DAFFODILS VILLA, SEAVIEW WARD, BASZR P.O., ALAPPUZHA., PIN - 688012 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 31st day of January, 2024 This regular second appeal has been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908, challenging the decree and judgment dated 18.12.2023 in A.S.No.33/2023 on the files of the Additional District Judge-III, Alappuzha, arose out of the decree and
judgment dated 29.09.2022 in O.S.No.242/2019 on the files
of the Additional Munsiff's Court, Alappuzha. The appellant herein is the defendant in the above Suit.
2. Heard the learned counsel for the appellant on admission.
3. It is discernible from the first appellate judgment
that, after the death of the original first plaintiff, who got arrayed as the first respondent therein, nobody impleaded in the first appeal and thereby, the case against the first plaintiff/first respondent stood abated.
4. The learned counsel for the appellant failed to
convince any substantial questions of law in this appeal, since the appellant does not have any right over the plaint schedule property, which was settled by the second plaintiff in favour of the first plaintiff. However, the learned counsel sought permission to withdraw the regular second appeal, after granting a grace period for the appellant to vacate the plaint schedule building, which was assigned in favour of the first plaintiff by the 2nd plaintiff as per Ext.A1 settlement deed.
5. In response to the submission made by the learned counsel for the appellant, this appeal stands dismissed as withdrawn.
6. Since the learned counsel for the appellant sought
six months' time to vacate the building, I am inclined to grant four months' time to the appellant to vacate the plaint schedule building from today, provided the appellant shall file an affidavit before the trial court within a period of two weeks' from today, undertaking to vacate the plaint schedule building on expiry of four months' from today. If no such affidavit will be filed within two weeks, as directed, the grace period of four months granted by this Court shall not be available and the decree impugned can be put into execution without waiting for four months. All interlocutory applications pending in these regular second appeals stand dismissed.
Registry is directed to forward a copy of this judgment
to the court below concerned forthwith for information and compliance. Sd/- A. BADHARUDEEN JUDGE nkr