IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26134 of 2009(R)
1. S.K.SASIKUMAR,S/O.KESAVAN NADAR,
... Petitioner
Vs
1. SHALI JOSEPH,
... Respondent
2. S.S.KIRAN,
3. S.S.ANGEL,
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent :SRI.RAM MOHAN.G.
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/08/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.26134 of 2009
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Dated this the 18th day of August, 2010
J U D G M E N T
Defendant in O.S. No.47 of 2007 of the court of learned Munsiff,
Tirur is the petitioner before me challenging Ext.P1, order imposing
condition for deposit of one half of the amount due to the respondent
as per decree to set aside that ex parte decree and directing that in
case condition is not complied within the time stipulated application
would stand dismissed automatically. Order stated that petitioner
shall deposit on or before 28.03.2009, Rs.16,125/- being one half of
the decree amount. Admittedly, the amount has not been deposited
within the time stipulated and hence the order has worked out.
Application for setting aside ex parte decree thus stands dismissed.
There is a statutory remedy available to the petitioner under Order
XLIII Rule 1(d) of the Code of Civil Procedure (for short, “the Code”).
The mere fact that statutory remedy has become time barred is not by
itself sufficient to invoke supervisory jurisdiction under Article 227 of
the Constitution as the Division Bench of this Court said in
Panopharam v. Union of India (2010 [3] KLT 149). Petitioner
W.P(C) No.26134 of 2009
-: 2 :-
has to approach the appropriate Forum invoking the statutory remedy
under Order XLIII Rule 1(d) of the Code.
2. It is pointed out by learned counsel that execution
proceeding is on and that petitioner may be pressurised to pay the
decree amount in the meantime. Learned counsel states that
petitioner intends to prefer appeal against the impugned order with a
request to condone the delay. It is also submitted that petitioner is
not able to raise the amount immediately. Having regard to the facts
and circumstances it is directed that execution proceeding will
stand in abeyance for a period of forty five (45) days or till appellate
court which entertains the appeal against the impugned order passes
appropriate orders whichever is earlier.
Writ Petition is disposed of as above.
THOMAS P. JOSEPH, JUDGE.
vsv