IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 793 of 1997(C)
1. GOPALAN
... Petitioner
Vs
1. KUNHAYYAPPAKUTTY
... Respondent
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent :SRI.S.ANANTHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :23/09/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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S.A.NO.793 OF 1997
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Dated this the 23rd day of September, 2010
J U D G M E N T
The defendant is the appellant. Suit was one for recovery
of possession, which was decreed in favour of the plaintiff by the
trial court. The defendant preferred an appeal before the lower
appellate court challenging the decree. The appeal was
dismissed for default. The present second appeal is seen filed
against the dismissal of such appeal for default by the court
below.
2. When the appeal came up for hearing, there was no
representation for the appellant. The respondent was present.
It has been brought to my notice by the learned counsel for the
respondent that the appellant had moved an application for
setting aside the dismissal of his appeal for default by the lower
appellate court and for restoration of the appeal to file to have a
S.A.NO.793/97 2
disposal on merits. That application for restoration being
dismissed by that court, it is submitted, an appeal was preferred
before this Court as C.M.A.No.220 of 1997. That appeal was also
dismissed confirming the order of the lower appellate court,
dismissing the first appeal of the appellant for default. Though
the order dismissing for default the first appeal of the appellant
is styled as a judgment and a decree has followed such judgment,
it is essentially an order passed under Order XLI Rule 19 of the
CPC, from which, no second appeal will lie. In the case of an
ex parte decree, it is open to the defendant to seek for setting
aside that decree under Order IX Rule 13 of the CPC or to move
an appeal against the decree as such if he has justifiable ground
to do so, to challenge the merit of that decree in appeal. But so
far as an order dismissing the appeal for default under Order XLI
Rule 19 of the CPC, the remedy of the appellant is either to seek
for restoration or to challenge such order, if it suffers from
jurisdictional infirmity, under Section 115 of the CPC, or under
Section 227 of the Constitution of India invoking the supervisory
jurisdiction of this Court, provided, there is sustainable ground
S.A.NO.793/97 3
to do so. The second appeal preferred against such order is
found to be not entertainable. The learned counsel for the
respondent has also brought to my notice that pending his
appeal, in execution of the decree, recovery of the property had
already been effected. Perhaps that may be reason that there is
no representation from the side of the appellant for the last few
postings. The appeal having found not entertainable, it is
dismissed directing both sides to suffer their respective costs.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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S.A.NO.793 OF 1997
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J U D G M E N T
23rd day of September, 2010
S.A.NO.793/97 5