IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 WP(C).No. 27476 of 2010(O) -------------------------------------- OS.397/2008 of PRL.M.C.,KOZHIKODE-II .................... PETITIONER(S): ----------------------- SHAHUL HAMEED M.P., S/O.NURDEEN, AGED 34, M.P.HOUSE, VYDYARANGADI POST, VELIPRAM AMSOM AND DESOM, KOZHIKODE DISTRICT. BY ADV. DR.V.N.SANKARJEE SRI.VICTOR ANTONY NOONE RESPONDENT(S): ------------------------- PRITHVEE RAJ, S/O.VASU VAIDYAN, AGED 50, SREE RAJ HOUSE, P.O.AZHINJILAM, AZHINJILAM, ERANADU TALUK, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kl. THOMAS P JOSEPH,J. --------------------------------------- W.P(C).NO. 27476 OF 2010 ------------------------------------------ Dated this the 6th day of September, 2010. JUDGMENT Defendant in O.S.No.397/2008 of the court of learned Principal Munsiff-II, Kozhikode is the petitioner challenging dismissal of I.A.5687/2009 to condone the delay of 504 days in filing I.A.No.5688/2009 to set aside the exparte decree dated 14.8.2008. Petitioner claimed that due to a fall he suffered fracture and hence could not be file written statement within the time stipulated. Learned Munsiff dismissed I.A.5687 of 2009 as per Ext.P7, order and refused to condone the delay. Consequently, I.A.5688/2009 was dismissed. Challenge in this writ petition is to Ext.P7, order dismissing I.A.5687 of 2009 to condone the delay. Learned counsel has placed reliance on decisions in K.Govindan v Commissioner of Income Tax, Cochin (2001 (1) SCC 460) and in Chandi Prasad v Jagdish Prasad and Others (2004 (8) SCC 724) to contend that writ petition against Ext.P7, order is maintainable. The first decision cited by the learned counsel concerned an appeal under the Income Tax Act. According to the learned counsel W.P(C).NO. 27476 OF 2010 2 that decision laid down the principle that when an appeal is dismissed consequent to the dismissal of an application to condone the delay, both the orders could be challenged. In Chandi Prasad v Jagdish Prasad and Others (supra), issue regarding merger in such a situation was considered. This Court in Lilly v Rajesh (2004 (3) KLT 712) after referring to the various decisions on the point has held that when an application to condone the delay and the application to set aside the exparte decree are dismissed, no revision would lie against the order dismissing then application to condone the delay under Section 115 of the Code of Civil Procedure (for short, 'the Code') and that proper remedy available to the party is to prefer appeal against the order dismissing the application to set aside the exparte decree under Order 43, Rule 1 (d) of the Code. True, in this case, it is not a revision under Section 115 of the Code but a writ petition under Article 227 of the Constitution. It is also true that order on I.A.No.5688 of 2009 refusing to set aside the exparte decree is consequent to Ext.P7, order refusing to condone the delay. But, by virtue of Section 105 of the Code it is open to the petitioner to challenge correctness of Ext.P7, order in an appeal preferred under Order 43, Rule 1 (d) of the Code against the order dismissing W.P(C).NO. 27476 OF 2010 3 I.A.5688 of 2009. When that statutory remedy is available to the petitioner under the Code, there is no reason why this Court should invoke Article 227 of the Constitution. In that view, I find no reason to entertain this writ petition. Accordingly, the writ petition is dismissed but, without prejudice to the right of petitioner to challenge correctness of Ext.P7, order in the appeal that may be preferred against the order dismissing I.A.5688 of 2009, if necessary by seeking the indulgence of the court concerned to condone/exclude the delay as provided under Section 5 or Section 14 of the Limitation Act. THOMAS P JOSEPH,JUDGE. pm