IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WP(C).NO. 26134 OF 2010(O) -------------------------------------- OS.47/2009 OF MUNSIFF COURT, TIRUR .................... PETITIONER(S): ----------------------- CHEMMILI MUHAMMED,AGED 50 YEARS, S/O.AVARAN HAJI,TIRUR TALUK,PERUMANNA AMSOM DESOM, P.O.VALAKULAM. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): ------------------------- MUTHIRAKALAYIL HASSAN KUNHI MOIDEEN, S/O.HASSAN,AGED 51 YEARS,PERUMANNA AMSOM DESOM, TIRUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.26134 of 2010 ==================================== Dated this the 18th day of August, 2010 J U D G M E N T Defendant in O.S. No.47 of 2007 of the court of learned Munsiff, Tirur is the petitioner before me challenging Ext.P1, order imposing condition for deposit of one half of the amount due to the respondent as per decree to set aside that ex parte decree and directing that in case condition is not complied within the time stipulated application would stand dismissed automatically. Order stated that petitioner shall deposit on or before 28.03.2009, Rs.16,125/- being one half of the decree amount. Admittedly, the amount has not been deposited within the time stipulated and hence the order has worked out. Application for setting aside ex parte decree thus stands dismissed. There is a statutory remedy available to the petitioner under Order XLIII Rule 1(d) of the Code of Civil Procedure (for short, “the Code”). The mere fact that statutory remedy has become time barred is not by itself sufficient to invoke supervisory jurisdiction under Article 227 of the Constitution as the Division Bench of this Court said in Panopharam v. Union of India (2010 [3] KLT 149). Petitioner W.P(C) No.26134 of 2010 -: 2 :- has to approach the appropriate Forum invoking the statutory remedy under Order XLIII Rule 1(d) of the Code. 2. It is pointed out by learned counsel that execution proceeding is on and that petitioner may be pressurised to pay the decree amount in the meantime. Learned counsel states that petitioner intends to prefer appeal against the impugned order with a request to condone the delay. It is also submitted that petitioner is not able to raise the amount immediately. Having regard to the facts and circumstances it is directed that execution proceeding will stand in abeyance for a period of forty five (45) days or till appellate court which entertains the appeal against the impugned order passes appropriate orders whichever is earlier. Writ Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv