High Court Kerala High Court

S.K.Sasikumar vs Shali Joseph on 18 August, 2010

Kerala High Court
S.K.Sasikumar vs Shali Joseph on 18 August, 2010
       

  

  

 
 
  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.
               ====================================
                        W.P(C) No.26134 of 2009
               ====================================
               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