IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 13062 of 2008(E) -------------------------- OS.16/2006 of SUB COURT,KATTAPPANA .................... PETITIONER: ------------ JOSE MATHEW, S/O MATHEW AGED 39 YEARS,, EATTATHOTTU HOUSE CHINNAR, 4TH MILE P.O., ELAPPARA VILLAGE IDUKKI DISTRICT BY ADV. SRI.JIJO PAUL RESPONDENTS: ------------- THE FEDERAL BANK LTD UPPUTHARA BRANCH, IDUKKI DISTRICT, REPRESENTED BY BRANCH MANAGER BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.13062 OF 2008 EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.16/2006 OF THE SUB COURT, KATTAPANA DATED 24.1.2006. EXT.P2 TRUE COPY OF THE JUDGMENT IN O.S.NO.16/2006 OF THE SUB COURT, KATTAPPANA, DATED 31.5.2006. EXT.P3 TRUE COPY OF THE I.A. FILED BY THE DEFENDANTS AS I.A.NO.990/2006 IN O.S.NO.16/2006 OF THE SUB COURT, KATTAPPANA, DATED 19.7.2006. EXT.P4 TRUE COPY OF THE I.A. FILED BY THE DEFENDANTS AS I.A.NO.992/2006 IN O.S.NO.16/2006 OF THE SUB COURT, KATTAPANA DATED 19.7.2006. EXT.P5 TRUE COPY OF THE ORDER PASSED IN I.A.NO.992/2006 IN O.S.NO.16/2006 OF SUB COURT, KATTAPANA DATED 12.2.2007 EXT.P6 TRUE COPY OF THE DECREE IN O.S.NO.16/2006 DATED 31.5.2006 OF THE SUB COURT, KATTAPANA. EXT.P7 TRUE COPY OF THE ORDER DATED 28.3.2007 IN I.A.NO.992/2006 IN O.S.NO.16/06 OF THE SUB COURT, KATTAPANA. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.13062 of 2008 ------------------------------- Dated this the 20th June, 2008. J U D G M E N T This petition is filed challenging Exts.P5 and P7 orders to the extent of the cost awarded. Respondent is the plaintiff Bank. The suit was decreed ex parte on 31.5.2006. Petitioner filed Ext.P3 petition (I.A.No.990/2006) under Order IX Rule 13 of Code of Civil Procedure, along with I.A.No.992/2006, an application under Section 5 of the Limitation Act to condone the delay in filing the petition to set aside the ex parte decree. Under Ext.P5 order, learned Sub Judge allowed the application filed under Section 5 of the Limitation Act on deposit of cost. It was a self working order, making it clear that if cost is not deposited on or before 26.3.2007, petition will stand dismissed. Petitioner did not pay the cost, and consequently, under Ext.P7 order, petition (I.A.No.992/2006) was dismissed. Accordingly, I.A.No.990/2006, petition filed under Order IX Rule 13 of Code of Civil Procedure was also dismissed. This petition is filed under Article 227 of the Constitution of India to quash Exts.P5 and P7 orders, and also to direct the learned Sub Judge to dispose the suit. W.P.(C) No. 2 2. As a result of Exts.P5 and P7 orders, delay was not condoned and the petition filed under Order IX Rule 13 of Code of Civil Procedure, to set aside ex parte decree was also dismissed. Remedy of the petitioner is to file an appeal as provided under Order XLIII Rule 1(d) of Code of Civil Procedure. 3. Learned counsel appearing for petitioner argued that the petition to set aside the ex parte decree was allowed on terms and petitioner is only aggrieved by the cost and as the petition was allowed, remedy is not to prefer an appeal. I cannot agree. Though the petition was allowed on terms, the order will become final only on fulfilling the condition. As a result of the failure to pay or deposit the cost, the petition which originally stood allowed on terms was dismissed. After it was dismissed, the subsisting order is the one dismissing the application filed under Rule 13 of Order IX of Code of Civil Procedure. Though it was an order of dismissal for non-payment of the cost, nevertheless it is an order dismissing the petition filed under Rule 13 of Order IX of Code of Civil Procedure, which is amenable for challenge in an appeal. Though the order in a petition under Section 5 of the Limitation Act cannot be challenged in an appeal, in the appeal filed against the order in an application under W.P.(C) No. 3 Rule 13 of Order IX of the Code of Civil Procedure, the order can also be challenged. When the right of appeal is available, petitioner is not entitled to challenge the impugned orders under Article 227 of the Constitution of India. This petition is dismissed with liberty to challenge the orders in appeal. M.SASIDHARAN NAMBIAR, JUDGE nj.