IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22146 of 2010(O)
1. C.R.JACOB,
... Petitioner
Vs
1. JOSE,
... Respondent
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/07/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.22146 of 2010
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Dated this the 15th day of July, 2010.
JUDGMENT
Appellant in C.M.A.No.3 of 2009 pending in the court of learned Additional
District Judge, Irinjalakkuda is the petitioner before me. He applied for setting
aside the exparte decree passed against him in O.S.No.178 of 2001 of the
Additional Sub Court, Irinjalakkuda. That application was dismissed as it was
barred by limitation and the learned Sub Judge thought that reasons stated by
the appellant for condonation of delay are not sufficient. Dismissal of the
application to set aside exparte decree is under challenge in C.M.A.No.3 of
2009. According to the petitioner, Presiding Officer of the Additional District
Court is not sitting from 01.07.2010 onwards and hence petitioner was not able
to get relief in the application for stay of execution of decree preferred C.M.A.3
of 2009. Grievance of petitioner is that in the meantime respondent is taking
steps to execute the exparte decree which if executed, petitioner will be put to
irreparable loss and injury.
2. Assuming that Presiding Officer of Additional District Court,
Irinjalakkuda is not sitting as the petitioner states, petitioner is not without any
remedy under the Code. The court holding full charge of that court can consider
the application filed by petitioner. In case such full charge is not given to any
other court it is also open to the petitioner to move the learned Principal District
WP(C) No.22146/2010
2
Judge, Thrissur under Section 24 of the Code of Civil Procedure (for short, “the
Code”) to withdraw C.M.A.No.3 of 2009 and the application of stay and seek
appropriate relief since Sub-section (3) of Section 24 of the Code makes it clear
that for the purpose of the said Section the Additional District Judge shall be
deemed to be subordinate to the Principal District Judge. There is no reason
why petitioner should not resort to those remedies rather than rushing to this
Court with a petition under Article 227 of the Constitution.
Resultantly, this Writ Petition is closed without prejudice to the right of
petitioner to seek appropriate relief as above stated.
THOMAS P.JOSEPH,
Judge.
cks