IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 FAO.No. 132 of 2008() ------------------------------ AGAINST THE ORDER DATED 05/04/2008 IN IA 500/2008 IN AS.17/1997 of SUB COURT, TIRUR .................... APPELLANT/RESPONDENT/PETITIONER ---------------------------------------------------------- NAFEESA, W/O.LATE KUNHIKKAMMADINTE CHERIYA BAVA, AGED 55, RESIDING AT KUNHIKKAMMADINTE PURAKKAL, NEDUVA AMSOM DESOM, PARAPPANANGADI TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR RESPONDENT/APPELLANT/RESPONDENT/RESPONDENT/PETITIONERS ------------------------------------------------------------------------------------------------------ 1. KONIYATH ALIKKUTTY, S/O.KUNHAVA, AGED 63 NEDUVA AMSOM DESOM, PARAPPANANGADI, TIRURANGAADI TALUK, MALAPPURAM DISTRICT. 2. KASMI,S/O.LATE KUNHIKKAMMADINTE PURAKKAL CHERIYA BAVA, RESIDING AT KUNHIKKAMMADINTE PURAKKAL, NEDUVA AMSOM DESOM, PARAPPANANGADI 3. HAMEED, S/O.LATE KUNHIKKAMMADINTE PURAKKAL CHERIYA BAVA, RESIDING AT KUNHIKKAMMADINTE PURAKKAL, NEDUVA AMSOM DESOM, PARAPPANANGADI TIRURANGADI TALUK, MALAPPURAM DISTRICT. 4. SALEEM, S/O.LATE KUNHIKKAMMADINTE PURAKKAL CHERIYA BAVA, RESIDING AT KUNHIKKAMMADINTE PURAKKAL, NEDUVA AMSOM DESOM, PARAPPANANGADI, TIRURANGADI TALUK, MALAPPURAM DISTRCT. 5. SOUDHABI, D/O.LATE KUNHIKKAMMADINTE PURAKKAL CHERIYA BAVA, RESIDING AT KUNHIKKAMMADINTE PURAKKAL, NEDUVA AMSOM DESOM, PARAPPANANGADI TIRURANGAADI TALUK, MALAPPURAM DISTRCT. BY ADV. SRI.N.SUBRAMANIAM - R1 SRI.M.S.NARAYANAN - R1 SMT.T.SINDHU – R2 TO R5 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ===================== FAO No.132 OF 2008 ===================== Dated this the 18th day of July 2008 JUDGMENT This appeal is preferred against the order in the interlocutory applications, I.A.Nos.499 & 500 of 2008. Those applications were filed by supplemental respondents 6 to 10, one with a prayer to condone the delay and the other to rehear the matter under Order 41 Rule 21 C.P.C. It is submitted that when the appeal was pending the counsel for respondents reported no instructions and the appeal happened to be allowed. Thereafter it is submitted that an application under Order 9 Rule 13 was filed to set aside the ex parte decree. On proper legal advise he was directed to file an application under Order 41 Rule 21 C.P.C. It is submitted that an application under Order 9 Rule 13 may not lie and as Order 41 Rule 21 will be governing the field, the earlier application under Order 9 rule 13 was not pressed and now the present application I.A.No.500/2008 is filed. There is some confusion regarding the earlier application. If it is an application filed under Order 9 rule 13 certainly the disposal of that application in any manner may not have the effect of estoppal or res judicata in an application under Order 41 Rule 21. But, if the previous application was also filed FAO 132/2008 -:2:- under Order 41 rule 21 and it has been dismissed as not pressed, then the question whether that not pressed application will amount to estoppal or res judicata will loom large for consideration. Therefore I feel the matter requires reconsideration. The order under challenge is set aside and the learned Sub Judge is directed to consider the applications afresh specifically also referring to the earlier petition and whether it is an application under Order 41 rule 21 or order 9 rule 13 then thereafter hearing both sides on merits as well afresh and dispose of the matter in accordance with law. Needless to say that both the applications, viz., the delay condonation application as well as the Order 41 rule 21 application have to be simultaneously heard and if necessary, permission be given to adduce evidence in accordance with law. It is also made clear that both parties are prevented from carrying out any construction in the property marked as AEJD. Parties are directed to appear before the appellate court on 26.8.2008. FAO is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/- FAO 132/2008 -:3:-