IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 429 of 2010(O)
1. PAULSON, S/O.ARAIKKAL JOSEPH,
... Petitioner
Vs
1. KOVILAKAM CHITS & FINANCIAL SERVICES
... Respondent
2. CLAMENT,
3. LIYO, S/O.THALAKKOTTOOR VINCENT,
4. JOHNSON, S/O.THALAKKOOTTOOR VINCENT,
5. GEORGE,
For Petitioner :SRI.NAGARAJ NARAYANAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :/ /
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.429 of 2010
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Dated this 22nd day of October, 2010
JUDGMENT
Defendant in O.S.No.896 of 2002 of the court of learned
Sub Judge, Thrissur is the petitioner before me challenging
Exts.P3 and P4, orders. That was a suit for recovery of money
which was decided ex parte, in the absence of petitioner.
Petitioner filed Ext.P1, application to set aside the ex parte
decree and judgment and Ext.P2, application to condone the
delay of 466 days. Learned Sub Judge dismissed Exts.P1 and P2,
applications as per Exts.P3 and P4, orders dated February 3,
2010. Vide Ext.P4, I.A.No.2533 of 2009 (Ext.P2) for condonation
of delay has been dismissed stating reasons and consequently
Ext.P1, application (I.A.No.2532 of 2009) to set aside the ex parte
decree has also been dismissed. The said orders are under
challenge under Article 227 of the Constitution.
2. I have heard counsel on the sustainability and
maintainability of this petition under Article 227 of the
Constitution. Learned counsel placing reliance on the decision in
Jayakurmari Vs. Ismail Rawther (2001(2) KLT 551)
contends that the order dismissing an application to condone the
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delay is amenable to the supervisory jurisdiction of this court
under Article 227 of the Constitution. Hence the challenge to that
order is maintainable. It is also contended that since the reason
for dismissal of the application to set aside the ex parte decree is
the refusal to condone the delay, dismissal of the application to
set aside the ex parte decree must be taken as a consequential
order following dismissal of the application to condone the delay
and hence in the light of the decision in Jayakurmari Vs. Ismail
Rawther (supra), petition under Article 227 of the Constitution
is maintainable.
3. No doubt, an order refusing to condone the delay by
itself is amenable to the supervisory jurisdiction of this court
under Article 227 of the Constitution but, I must bear in mind
that the said application is filed in an application to set aside the
ex parte decree. In other words the main relief prayed for is to
set aside the ex parte decree and, that application is
maintainable on its own. It is only that since that application is
not preferred within the prescribed time, petitioner has filed an
application to condone the delay in filing that application so that,
if delay is condoned the application to set aside the ex parte
decree becomes in order. Therefore, contention that dismissal
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of the application to set aside the ex parte decree is something
that follows the dismissal of application to condone the delay
cannot be accepted. Dismissal of application to set aside the ex
parte decree is subject to an appeal under Order XLIII Rule 1(d)
of the Code of Civil Procedure (for short, “the Code”). Position
may be different where the application is to condone the delay is
dismissed, that order is under challenge in this court in exercise
of supervisory power under Article 227 of the Constitution and in
the meantime, the application to set aside the ex parte decree is
also dismissed. Here, dismissal of both the applications is
simultaneous. In such a situation, remedy of petitioner is to
challenge dismissal of the application to set aside the ex parte
decree under Order XLIII, Rule 1(d) of the Code. That, an appeal
in such a situation is maintainable against the order refusing to
set aside the ex parte decree is held by this court in
Lakshmikutty Panickathi Vs. Bhargavi Panickathi (1987
(2) KLT 562) . In that decision it has been held that merely
because the reason for rejection (of the application to set aside
the dismissal of suit in that case) is the delay consequent to the
rejection of the delay condonation petition in the absence of
sufficient reason the order does not cease it to be an order under
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Order IX, Rule 9 of the Code. Same principle is applicable to
dismissal of the application under Order IX, Rule 13 of the Code
as well.
4. A direct authority on the point is Lilly Vs. Rajesh
(2004(3) KLT 712). There, referring to the decision in
Jayakurmari Vs. Ismail Rawther (supra) it has been held that
where an application to condone the delay and to set aside ex
parte decree are dismissed simultaneously remedy available to
the party is to file an appeal under Order XLIII, Rule 1(d) of the
Code against the application refusing to set aside the ex parte
decree.
5. Another decision on the point is an unreported
decision dated January 19, 2007 in unnumbered W.P.C.——- of
2007 where also the same view has been taken. Yet another
decision is C.K. Thoma & Co. Vs. Muthoot Leasing and
Finance Ltd. (2007(2) KLT 32). There, it has been held that
even if the application under Order IX, Rule 13 of the Code was
dismissed consequent to dismissal of the application filed under
Sec.5 of the Limitation Act (to condone the delay), nevertheless it
is an order in the application under Rule 13 of Order IX of the
Code. In view of the above authorities, since the applications to
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condone the delay as well as to set aside the ex parte decree have
been dismissed by the court below simultaneously, remedy of
petitioner is not to file a petition under Article 227 of the
Constitution against the order dismissing the application to
condone the delay but, to prefer appeal against the order
dismissing the application to set aside the ex parte decree as
provided under Order XLIII, Rule 1(d) of the Code and in that
appeal challenge correctness of the order dismissing application
to condone the delay.
Resultantly this petition is dismissed but, without prejudice
to the right of petitioner to challenge the order declining to set
aside the ex parte decree under Order XLIII, Rule 1(d) of the
Code and in that appeal challenge correctness of the order
refusing to condone the delay.
(THOMAS P JOSEPH, JUDGE)
Sbna/-