IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 CRP.No. 170 of 2008() ----------------------------- CMA.50/2007 of II ADDL.DISTRICT COURT,ERNAKULAM OS.338/1999 of MUNSIFF COURT, PERUMBAVOOR (IA.1942/05) .................... REVN. PETITIONER: APPELLANTS ---------------------------- 1. M.P.MATHEW, MUTHANADU HOUSE, KIZHAKKAMBALAM VILLAGE, KIZHAKKAMBALAM KARA. 2. M.V.PAILY, -DO- -DO- BY ADV. SRI.G.UNNIKRISHNON SRI.K.SANEESH KUMAR RESPONDENTS: RESPONDENT ----------------------- MATHEW JOHN, KACHAPPILLY HOUSE, KIZHAKKAMBALAM VILLAGE. BY ADV. SRI.ABHILASH BHASKAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP. NO.170/2008 ORDER ON IA. NO.492/2008 IN CRP. NO.170/2008 DISMISSED 13.03.2008 SD/- M.N.KRISHNAN , JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = C.R.P. NO. 170 OF 2008 = = = = = = = = = = = = = = = Dated this the 13th day of March, 2008. O R D E R This revision petition is preferred against the order in CMA 50/07 of the District Judge, Ernakulam. The defendant in the suit against whom an exparte decree was passed moved two applications one to condone the delay of 50 days and the other to set aside the exparte decree. The petition to condone the delay was dismissed and I am informed as a consequential order the petition to set aside the exparte decree was also dismissed. But unfortunately the present revision petitioners challenged the order passed against them in the delay condonation application before the District Court as CMA 50/07. Order 43 Rule 1(d) provides the forum to challenge the rejection of an application to set aside the exparte decree. What was challenged before the District Court was not the order rejecting the application to set aside the exparte decree but only the order whereby the delay CRP NO.170 of 2008 -:2:- condonation application was dismissed. It is also to be stated under the provisions of law when there is an application to condone the delay as well as application to set aside the exparte decree filed both can be clubbed together and challenged under Order 43 Rule 1(d). Without resorting to that an appeal was preferred against the order under Section five of the Limitation Act which is not an appealable order at all but a revisable order and the learned District Judge who has no jurisdiction to entertain the matter heard it and disposed it of on merits. It is against that order the present C.R.P is filed which I feel cannot be entertained by this Court. But the party should not be left without any remedy. Most probably it is the mistaken impression of the lawyer who gave wrong advice which had resulted in the filing of the CMA before the District Court. Therefore I dismiss the C.R.P. but give liberty to the petitioners herein to challenge the order passed in I.As.1942/05 and 1941/06 together by way of an appeal under Order 43 Rule 1(d) and the appellate court is directed to consider the delay caused in filing the appeal CRP NO.170 of 2008 -:3:- under Section 5 of the Limitation Act sympathetically for the reason that there was a wrong prosecution and even the Court is also a party to it for the reason that it entertained a matter which should not have been entertained by it and the Court may then consider that application and pass appropriate orders. M.N. KRISHNAN, JUDGE. ul/-