IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 OP(C).No. 4066 of 2011(O) ------------------------- AGAINST THE ORDER DATED 16/10/2011 IN I.A 1574/2011 IN AS.129/2011 of D.ISTRICT COURT,TRIVANDRUM OS.748/2006 of PRINCIPAL MUNSIFF COURT,TRIVANDRUM .................... PETITIONER (S): -------------------- 1. PRATHAPAN,AGED 54 YEARS,S/O.KRISHNAN, P.P.NIVAS,ARASUMMOODU,ATTIPRA VILLAGE, KULATHOOR P.O,THRIUVANANTHAPURAM. 2. PUSHPALATHA,AGED 49 YEARS, P.P NIVAS,ARASUMMOODU,ATTIPRA VILLAGE, KULATHOOR P.O,THRIUVANANTHAPURAM. BY ADV. SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR RESPONDENT(S): --------------- KRISHNAMMA,AGED 46 YEARS, SREENI NIVAS,KOLLAMVILAKOM,ARASUMMOODU, KULATHOOR P.O, 695 583,THIRUVANANTHAPURAM. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.4066/2011 APPENDIX PETITIONER(S) EXHIBITS: EXHIBIT P1. TRUE COPY OF THE PLAINT IN O.S 748 OF 2006 DATED NIL ON THE FILES OF PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXHIBIT P2. TRUE COPY OF THE WRITTEN STATEMENT DATED 08.08.2006 FILED BY THE PETITIONERS HEREIN IN O.S NO.748/2006 BEFORE THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXHIBIT P3. TRUE COPY OF THE JUDGMENT DATED 28.1.2010 IN O.S 748 OF 2006 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXHIBIT P4. TRUE COPY OF ORDER DATED 16.10.2011 IN I.A 1574 OF 2011 IN A.S 129 OF 2011 ON THE FILES OF DISTRICT COURT, THIRUVANANTHAPURAM. EXHIBIT P5. TRUE COPY OF THE REPORT AND SKETCH OF THE COMMISSIONER IN O.S 748 OF 2006 AND DATED 21.6.2007. EXHIBIT P6. TRUE COPY OF EXECUTION PETITION NO.147/2011 DATED 5.4.2011 FILED BY THE RESPONDENT BEFORE THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM IN O.S NO. 748/2006. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.4066 of 2011 -------------------------------------- Dated this the 22nd day of December, 2011. JUDGMENT Notice to the respondent is not so far returned. In the view of the decision I propose to take in this Original Petition, it is not necessary to await notice. 2. Petitioners has suffered an exparte decree dated 28.01.2010 in O.S.No.748 of 2006 of the court of learned Principal Munsiff, Thiruvananthapuram. Petitioners challenged that exparte decree in appeal – A.S.No.129 of 2011 before learned District Judge, Thiruvananthapuram accompanied by I.A.No.1574 of 2011 to condone the delay. Learned District Judge by Ext.P4, order dated 16.10.2011 dismissed I.A.No.1574 of 2011. That order is under challenge in this Original Petition. 3. When this matter came up for hearing on 12.12.2011 learned counsel submits that petitioners intended to file Second Appeal against dismissal of the appeal as also Ext.P4, order on I.A.No.1574 of 2011 in A.S.No.129 of 2011. Considering the submission made by learned counsel this Court ordered that execution of the decree to the extent it concerned plaint B schedule will stand in abeyance for a period of two weeks from 12.12.2011. OP(C)No.4066/2011 2 4. Since consequent to the dismissal of I.A.No.1574 of 2011 there is or should be a dismissal of A.S.No.129 of 2011 which has to be followed by the drawing up a decree as held by this Court in Leena v. State (2010 (2) KLT 836) and that decree is subject to an appeal as held by the Full Bench of this Court in Thambi v. Mathew (1987 (2) KLT 848) approved by the Supreme Court in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198), proper remedy available to the petitioners is to challenge the decree dismissing A.S.No.129 of 2011 on appropriate grounds as are available and in that appeal, challenge correctness of Ext.P4, order dismissing I.A.No.1574 of 2011. In that view of the matter this Original Petition cannot be sustained. 5. Learned counsel requested that the interim order passed by this Court on 12.12.2011 may be extended till 07.01.2010 since petitioners propose to file Second appeal in the meantime. I am inclined to allow the request having regard to the circumstances of the case. Resultantly this Original Petition is disposed of without prejudice to the right if any, of petitioners to challenge the decree in A.S.No.129 of 2011 of the court of learned District Judge, Thiruvananthapuram by way of Second Appeal and in that Appeal challenge correctness of Ext.P4, order. It is directed that OP(C)No.4066/2011 3 interim order passed by this Court on 12.12.2011 will remain in force until 07.01.2012 or the court considering the Second Appeal passes appropriate orders in the matter, whichever is earlier. THOMAS P.JOSEPH, Judge. cks