IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22916 of 2008(C)
1. P.M.PRAMOD, S/O.,LATE P.M.KURUP
... Petitioner
2. SHEENA
Vs
1. N.V.PARAMESWARAN
... Respondent
For Petitioner :SRI.P.R.SREEJITH
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :30/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.22916 of 2008
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Dated this the 30th July, 2008.
J U D G M E N T
Petitioners are the defendants in O.S.No.291 of 2002
and O.S.No.217 of 2003, on the file of Sub Court, Kozhikode. Petitions
were filed respectively by the petitioners in the two suits to set aside
the ex parte decree passed against them. Petitions were originally
allowed by the court directing payment of cost of Rs.5000/= and
deposit of Rs.50,000/= as security. Petitioners challenged that order
before this Court in W.P.(C) No.21738 of 2007 contending that cost
awarded is excessive and the direction for cash deposit is
unsustainable. This Court under Ext.P1 judgment dated 2.8.2007
modified the order and reduced the cost to Rs.2500/= and also
permitted petitioners to furnish security, instead of cash deposit.
Petitioners thereafter deposited the cost and also furnished security.
Security was found to be insufficient. Consequently, petitions were
dismissed. This petition is filed under Article 227 of the Constitution
of India challenging the order dismissing the applications filed under
Rule 13 of Order IX of Code of Civil Procedure.
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2. The learned counsel appearing for the petitioners
was heard.
3. The argument of the learned counsel is that as
Ext.P3 order passed by learned Sub Judge in I.A.No.4092 of 2007,
finding that security furnished is not sufficient, cannot be challenged in
appeal, petition under Article 227 of the Constitution of India is filed,
though appeal is provided against an order dismissing the application
under Order IX Rule 13 of Code of Civil Procedure.
4. The order passed dismissing an application under
Order IX Rule 13 of Civil Procedure Code to set aside the ex parte
decree is appealable, as provided under Order XLIII Rule 1 of Code of
Civil Procedure. Therefore, remedy of the petitioners as against
dismissal of the applications is to file an appeal. For the reason that
Ext.P3 order passed in I.A.No.4092 of 2007 is not appealable,
petitiners are not entitled to challenge the order passed under Order
IX Rule 13 of Code of Civil Procedure, by filing a petition under Article
227 of the Constitution of India. Ext.P3 order passed in I.A.No.4092 of
2007 is an order recording that security furnished is not sufficient. In
such circumstances, while challenging the order passed by the Sub
W.P.(C) No.22916 of 2008
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Judge under Order IX Rule 13 of Code of Civil Procedure, petitioners
are entitled to challenge Ext.P3 order also. With liberty to file an
appeal as against the orders dismissing the applications filed under
Order IX Rule 13 of Code of Civil Procedure, this petition is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.