IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 OP(C).NO. 839 OF 2010(O) ------------------------------------- AGAINST THE ORDER IN IA.40/2010 IN AS.8/2010 OF ADDL.DISTRICT COURT-I,MAVELIKKARA OS.46/2004 OF MUNSIFF COURT, MAVELIKKARA (EP.23/2009) .................... PETITIONERS: --------------------- 1. CHELLAMMA, AGED 70 YEARS, KALEECKALETHU PADINJARE MURI, THAMARAKULAM VILLAGE, MAVELIKARA TALUK. 2. LATHA, AGED 40 YEARS, KALEECKALETHU PADINJARE MURI, THAMARAKULAM VILLAGE, MAVELIKARA TALUK. 3. USHA, AGED 37 YEARS, KALEECKALETHU PADINJARE MURI, THAMARAKULAM VILLAGE, MAVELIKARA TALUK. 4. SUSEELA, AGED 35 YEARS, KALEECKALETHU PADINJARE MURI, THAMARAKULAM VILLAGE, MAVELIKARA TALUK. BY ADV. SRI.K.SASIKUMAR SRI.P.JINISH PAUL RESPONDENT(S): ------------------------ 1. JANAKI, KALEECKALETHU PADINJARE MURI, THAMARAKULAM VILLAGE, MAVELIKARA TALUK. 2. VIJAYAMMA, VETTATHU PADEETTATHIL, VAZHUVADY, THAZHAKARA P.O., MAVELIKARA. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) NO.839 of 2010 ==================================== Dated this the 24th day of November, 2010 J U D G M E N T Judgment debtor Nos.1, 3, 4 and 6 in E.P. No.23 of 2005 in O.S. No.46 of 2004 of the court of learned Munsiff, Mavelikkara are the petitioners before me. Shown off frills and embroideries it is suffice to say that preliminary and final decrees are passed in the case for partition. Petitioners have challenged the decree in A.S. No.8 of 2010 before learned Additional District Judge, Mavelikkara with Ext.P7, application for condonation of delay. While so, execution proceeding continued and petitioners approached this Court with W.P(C) No.17796 of 2010 seeking interim relief against execution until the application to condone the delay is disposed of by the learned Additional District Judge. This Court disposed of the Writ Petition on August 2, 2010 vide Ext.P13, judgment directing learned Munsiff to keep in abeyance delivery proceeding until Ext.P7, application is disposed of by the learned Additional District Judge. Thereafter learned Additional District Judge considered Ext.P7, application and dismissed that application refusing to condone the delay vide Ext.P14, order on October 5, 2010. Consequently the appeal also has been dismissed vide Ext.P15, O.P(C) No.839 of 2010 -: 2 :- judgment. Exhibits P14 and P15 are under challenge in this petition. According to the learned counsel for petitioners this petition is maintainable against Ext.P14, order and if the delay is condoned necessarily Ext.P15, judgment on the appeal has to be set aside. 2. I am unable to agree. For, though it is consequent to the refusal to condone the delay that the appeal was dismissed, a decree will have to be drawn up following Ext.P15, judgment. The dismissal of appeal is amenable to a Second Appeal as provided under Section 100 of the Code of Civil Procedure. In such appeal it is open to the petitioner to challenge correctness of Ext.P14, order refusing to condone the delay. In such a situation petitioner cannot maintain this Writ Petition against Ext.P14, order and then challenge correctness of Ex.P15, judgment. Proper remedy available to the petitioner is to challenge Ext.P15, judgment by way of Second Appeal and challenge correctness of Ext.P14, order in that appeal. Without prejudice to that right of petitioner this petition is closed. THOMAS P. JOSEPH, JUDGE. vsv