IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 CRP.No. 5 of 2011 AGAINST THE JUDGMENT IN C.M.A.NO.28/2009 OF SUB COURT, PAYYANNUR IN I.A.NO.601/2009 IN O.S.NO.146/2008 OF MUNSIFF'S COURT, THALIPARAMBA. REVN. PETITIONER: RESPONDENT/PLAINTIFF ----------------------------------------- KUNNAPPADA GOVINDAN, S/O. PARU, AGED 63 YEARS, KUNNAPPADA HOUSE, PARIYARAM AMSOM, VAYAD DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.V.A.SATHEESH RESPONDENT: PETITIONER/DEFENDANT ----------------------------------- PUTHIYAPURAYIL KUNHIRAMAN, S/O. APPA, AGED 64 YEARS, PUTHIYAPURAYIL HOUSE, C.POYIL.P.O., PARIYARAM AMSOM, VAYAD DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT -670 003. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A.NO.18/2011 IN C.R.P. NO.5/2011 DISMISSED 27/6/2011 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 5 OF 2011 B ------------------------------------------------------ Dated this the 27th day of June, 2011 O R D E R The petitioner is the plaintiff in O.S.No.146 of 2008 on the file of the Court of the Munsiff of Thaliparamba. The defendant in the suit appeared before Court. But, he did not file any written statement, though time was granted for the same. On 22.1.2009, the suit was decreed invoking Rule 10 of Order VIII of the Code of Civil Procedure. The defendant filed I.A.No.601 of 2009 under Order IX Rule 13 of the Code of Civil Procedure to set aside the exparte decree. That application was dismissed by the learned Munsiff. On appeal (C.M.A.No.28 of 2009, Sub Court, Payyannur) by the plaintiff, the Appellate Court set aside the order passed by the trial court and allowed I.A.No.601 of 2009, on condition that the defendant shall pay a sum of Rupees Two thousand as costs to the plaintiff. The plaintiff challenges the judgment in C.M.A.No.28 of 2009. 2. Learned counsel for the petitioner submitted that the suit was decreed under Rule 10 of Order VIII of the Code of Civil C.R.P. NO. 5 OF 2011 :: 2 :: Procedure and, therefore, an application under Rule 13 of Order IX of the Code of Civil Procedure is not maintainable. A Division Bench of this Court in Manick Peter v. Surendranathan (1987 (2) KLT 328) held that merely for the reason that the decree was passed under Order VIII Rule 10 of the Code of Civil Procedure for the failure of the defendant to file a written statement, it cannot be said that the decree is not an exparte decree. 3. The lower Appellate Court thought that an opportunity should be given to the defendant to contest the case. For the inconvenience caused to the plaintiff, the court below awarded costs as well. The learned counsel for the respondent/defendant submitted that the plaintiff deposited the costs. I do not find any jurisdictional error warranting interference under Section 115 of the Code of Civil Procedure. Accordingly, the Civil Revision Petition is dismissed. (K.T.SANKARAN) Judge ahz/