IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 WP(C).No. 37277 of 2009(O) -------------------------- CMA.4 & 5 of 2008 of DISTRICT COURT, PALAKKAD OS.70/2004 of SUB COURT, OTTAPPALAM .................... PETITIONER: JOSEPH, AGED 47 YEARS, S/O. LATE JOSEPH, PAZHUKKANTHARA, KARAKKURUSSI AMSOM, VAZHEMBURAM DESOM IN MANNARKADU TALUK. BY ADV. SRI. M.R.JAYAPRASAD RESPONDENTS:- 1. STATE BANK OF INDIA, REPRESENTED BY ITS BRANCH MANAGER, POTTASSERY. 2. JOSEPH, S/O. ULAHANNAN, AKKAPARAMBIL HOUSE, VAZHEMBURAM DESOM IN MNNARKADU TALUK, PALAKKADU DISTRICT. 3. AMMINI JOSEPH, D/O. JOSEPH, PSHUKKATHARA KARAKKURUSSI AMSOM, VAZHEMBURAM DESOM IN MANNARKADU TALUK. 4. GEORGE JOSEPH, S/O. JOSEPH PAZHUKKATHARA KARAKKURUSSI AMSOM, VAZHEMBURAM DESOM IN MANNARKKADU TALUK. 5. MERRY JOSEPH, D/O. JOSEPH PAZHUKKATHARA, KARAKKURUSSI AMSOM, VAZHEMBURAM DESOM IN MANNARKADU TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- W.P.(C). No. 37277 of 2009 ---------------------------------------------------- Dated this the 5th day of February, 2010. JUDGMENT Heard both sides. 2. The writ petitioner is the plaintiff in O.S. No. 70 of 2004 on the file of the Sub Court, Ottappalam which was a suit filed for a declaration that the ex parte decree obtained by the 1st respondent State Bank of India against the 2nd respondent Joseph, S/O. Ulahannan is not binding on the property or the plaintiff and respondents 3 to 5 herein. 3. On a day to which the suit stood posted for hearing on the issue regarding the sufficiency of court fee, the petitioner was absent and his counsel reported 'no instructions'. The suit was thereupon dismissed for default. The petitioner filed I.A No. 2468 of 2006 under Order IX Rule 9 C.P.C to restore the suit which was dismissed for default. Since the said application was filed out of time, he also filed I.A. No. 2467 of 2006 to condone the delay of 78 in filing the application. The trial court dismissed the application to condone the delay and consequently the petition under Order IX Rule 9 C.P.C. The petitioner filed two W.P.(C) No. 37277/2009 : 2 : C.M. Appeals, one against the order dismissing the petition to condone the delay and the other against the order dismissing the petition under Order IX Rule 9 C.P.C as barred by limitation. As per Ext.P7 common judgment dated 29.06.2009, the learned District Judge dismissed the appeal against the dismissal of the petition to condone the delay as not maintainable and dismissed on merits the appeal against the dismissal of the restoration petition. It is the said judgment which is challenged in this writ petition. 4. The learned counsel for the writ petitioner apart from challenging Ext.P7 common judgment submitted that the suit itself was a collusive suit between respondents 1 and 2 and it would not be binding on the writ petitioner. 5. In the normal course, this Court would have been tempted to send the matter back for a re-consideration since the suit was dismissed not on merits but for the default of the petitioner. However, there is a yet another insurmountable hurdle for the petitioner. In the earlier suit filed as O.S. No. 35 of 1998 before the Munsiff's Court, W.P.(C) No. 37277/2009 : 3 : Mannarkkad between respondents 1 and 2 herein, the petitioner had filed a claim petition under Order XXI Rule 58 C.P.C as E.A. No. 136 of 2001 in E.P. No. 281 of 1999. The said application was dismissed on merits as per order dated 16.02.2004. By virtue of Order XXI Rule 58(4), it is deemed to be a decree and the remedy therefrom is not a separate suit but an appeal therefrom. Admittedly, the petitioner has not filed an appeal instead, according to him, he was advised to file the present suit which is clearly barred. When the suit itself is not maintainable, no useful purpose will be served by directing the court below to consider the contentions of the petitioner on merits. I, therefore, do not find any good ground to interfere with Ext.P7 judgment passed by the learned District Judge. This writ petition is accordingly dismissed. Dated this the 5th day of February, 2010. V. RAMKUMAR, JUDGE. W.P.(C) No. 37277/2009 : 4 : rv