IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 CRP.No. 295 of 2008 --------------------------------- CMA.621/2002 of V ADDL. SUB COURT, ERNAKULAM IA.6004/2001 IN OS.497/1995 OF I ADD. MUNSIFF COURT, ERNAKULAM ......... REVN. PETITIONER/APPELLANT/DEFENDANT: M.T.JOLLY, AGED 81 YRS, S/O.LATE. MANAYATHRA THOMAS, EX-SER,MAN, MANAYATHARA HOUSE, THUTHIYOOR ROAD, KAKKANAD KARA,VAZHAKKALA VILLAGE, REP. BY HIS GUARDIAN AND DAUGHTER ANNA PANANGADAN, AGED 50 YRS, RESIDING AT PANANGADAN HOUSE, THUTHIYOOR ROAD, KAKKANAD KARA, VAZHAKKALA VILLAGE. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.ANIL D. NAIR SRI.JOSON MANAVALAN SRI.A.M.SHAFFIQUE (SR.) RESPONDENT/RESPONDENT/PLAINTIFF: THOMAS, S/O.M.T.MAMEN, AGED 46 YRS, REP. BY HIS MOTHER AND POWER OF ATTORNEY HOLDER RUBY MAMEN, NOW RESIDING AT 27/4312-E, A/1 PULLIMAKKAL BUILDINGS, APPOOS RESIDENCY, CHAKOLA COLONY, PERUMANOOR, COCHIN 682 015. ADV. SRI.A.BALAGOPALAN SRI.V.N.GOPINATHAN SMT.KALA G.NAMBIAR THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/01/2009 ALONG WITH CRP NO.296 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.R.P.Nos.295 & 296 of 2008 --------------------------- COMMON ORDER These two revision petitions arise respectively from the judgments in C.M.A.Nos.621/02 and 622/02, which in turn were the appeals filed against the orders on I.A.No.6004/01 in O.S.No.497/95 and I.A.No.6002/01 in O.S.No.495/95. I.A.Nos.6002/01 and 6004/01 were filed by the petitioners herein seeking for an order setting aside the ex parte decrees passed in the respective suits. Those applications were dismissed on 30.11.2001. C.M.A. Nos.621/02 and 622/02 filed by them against those orders were also dismissed on 14.1.2003. Thereafter, probably, by way of abundant caution, the petitioner filed A.S.Nos.40/03 and 39/03 respectively from the ex parte decrees in O.S.Nos. 497/95 and 495/95. Delay condonation applications were also filed therein, as those appeals were filed belatedly. The delay condonation applications were dismissed and consequently, the appeals were CRP 295 & 296/08 2 also dismissed. A.S.No.40/03 was being dismissed by judgment dated 24.11.2004 and A.S.No.39/03 was being dismissed by judgment dated 22.11.2004. Assailing the judgments in C.M.A.Nos.621/02 and 622/02 C.R.P.Nos.295/08 and 296/08 were respectively filed by the petitioner on 26.3.2008 after A.S.Nos.40/03 and 39/03 filed against the ex parte decrees were dismissed. 2. It is contended by the counsel for the respondents that by reason of Explanation II to Order IX Rule 13 CPC, no application for setting aside an ex parte decree will be maintainable, as there had been appeals filed against the ex parte decrees and the appeals had been dismissed as barred by limitation consequent on dismissal of the delay condonation applications and not on the ground that the appellant has withdrawn the appeals and therefore, the petitioner is not entitled to prosecute these revision petitions. CRP 295 & 296/08 3 3. According to the counsel for the petitioner, the contention so canvassed is untenable, as in the instant case, applications under Order IX Rule 13 CPC have been filed by the petitioner, who was the defendant in both the suits and that having been dismissed, he preferred C.M. Appeals as well and those appeals were dismissed on 14.1.2003 and it was thereafter that by way of abundant caution appeals were filed against the ex parte decrees on 7.2.2003. Hence, according to him, this is not a case where applications under Order IX Rule 13 CPC were filed after the dismissal of the appeals filed against the ex parte decrees and the revision petitions are only in continuation of Order IX Rule 13 applications filed as early as in 2001. 4. Counsel for the respondent has brought to my notice the decision of the Apex Court in Shyam Sundar Sarma v. Pannalal Jaiswal ((2005) 1 SCC 436), wherein, the precise question that arises for consideration on the arguments canvassed by the CRP 295 & 296/08 4 counsel for the petitioner has been considered. In the said decision, it was held by the Apex Court that dismissal of an appeal for default or as barred by limitation cannot be treated on a par with non filing or withdrawal of appeal; that an appeal when dismissed on refusal to condone the delay is nevertheless a decision in the appeal; that merely because there is no merger of the decree of the trial court in that of the appellate court, in such an event, it does not imply that Explanation to Order IX Rule 13 CPC would not be applicable and that it covers also the appeal filed subsequent to the filing of application under Order IX Rule 13 for setting aside the ex parte decree. In the case that was under consideration by the Apex Court, application under Order IX Rule 13 CPC was filed first and an appeal against the decree was filed only during the pendency of that application and with a petition for condoning the delay, as the appeal was filed beyond time and that CRP 295 & 296/08 5 was dismissed by the time the petition under Order IX Rule 13 came up for consideration before the trial court. 5. It is vehemently contended before me by the learned counsel for the petitioner that the decision cited is distinguishable in the instant case, as in the instant case, Order IX Rule 13 applications were dismissed by the trial court and the C.M. Appeals filed therefrom were also dismissed and it was thereafter that appeals were filed and were dismissed and that therefore, there is no bar for this Court to consider the correctness of the concurrent orders passed by the courts below in an application under Order IX Rule 13 CPC. 6. The argument so advanced is unsound as an appeal or a revision is only a continuation of the proceedings in the trial court and no distinction can be drawn, as the proceedings have reached before this Court in revision. The result is that CRP 295 & 296/08 6 it has to be held that in view of Explanation II to Order IX Rule 13 CPC, petitions for revisions filed after the dismissal of the appeals filed against the ex parte decrees are not maintainable. In the result, I dismiss both these revision petitions. 15th January, 2009 (K.P.Balachandran, Judge) tkv