IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 CRP.No. 540 of 2010() --------------------- AGAINST THE ORDER DATED 28/06/2010 IN IA.43/10 IN OS.680/2000 of I ADDL.SUB COURT, THRISSUR .................... REVN. PETITIONER(S): PETITIONER ------------------------------- VARGHESE, S/O. LATE MENCHERY PARELANGADIYIL CHERUVATHOOR MATHU, AGED 53 YEARS, KUNNAMKULAM DESOM & VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.BASIL MATHEW SRI.K.B.SAJAN RESPONDENT(S): --------------- 1. PAUL, S/O. MANDUMPAL SEBASTIAN, PORKKULAM DESOM & VILLAGE, TALAPPILLY TALUK. 2. SHEELA, W/O. ABRAHAM, KUNNAMKULAM DESOM & VILLAGE, TALAPPILLY TALUK. 3. ABHILASH, S/O. ABRAHAM, KUNNAMKULAM DESOM & VILLAGE, TALAPPILLY TALUK. 4. ANEESH, S/O. ABRAHAM, KUNNAMKULAM DESOM & VILLAGE, TALAPPILLY TALUK. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/10/2010, ALONG WITH CRP NO.541/2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.Nos.540 & 541 of 2010 -------------------------------------- Dated this the 14th day of October, 2010. ORDER C.R.P.No.540 of 2010 is directed against order dated 28.06.2010 on I.A.No.43 of 2010 in O.S.No.680 of 2000 of the court of learned Additional Sub Judge-I, Thrissur while C.R.P.No.541 of 2010 is in challenge of the order dated 28.06.2010 on I.A.No.8707 of 2009 in the same suit. Petitioner is defendant No.1 in the suit and there was an exparte decree against him. After the prescribed time, he filed the above said applications the latter, under Order IX Rule 9 of the Code of Civil Procedure (for short, “the Code”) and the former, to condone the delay of 799 days in filing the said application. Learned Additional Sub Judge vide separate orders passed on the same day dismissed the applications. Hence these revisions. Learned counsel for petitioner contends that the order on I.A.No.43 of 2010 to condone the delay is not appealable under the Code and is amenable to a revision under Section 115 of the Code. It is contended that since dismissal of I.A.No.8707 of 2009 is in consequence of dismissal of I.A.No.43 of 2010 and the refusal to condone the delay, a revision is maintainable as against order on I.A.No.8707 of 2009 and at any rate, it is open to the petitioner to challenge correctness of the order on I.A.No.8707 of 2009 in revision preferred against the order on I.A.No.43 of 2010. Learned counsel contends that dismissal of I.A.No.8707 of 2009 is only in consequence to dismissal of I.A.No.43 of 2010. Reliance is placed on the decision of this Court in Jayakumari v. Ismail Rawther (2001 (2) KLT 551). CRP Nos.540 & 541/2010 2 2. Though learned counsel contended that the substantive application is I.A.No.43 of 2010 whereby delay in filing I.A.No.8707 of 2009 is sought to be condoned I am unable to accept that contention. The substantive relief prayed for is to set aside the exparte decree and since that application is preferred beyond the prescribed time I.A.No.43 of 2010 is preferred to condone the delay. It is a different matter that when the application to condone the delay is dismissed consequence is a dismissal of application to set aside the exparte decree. That is not because petitioner has no sufficient cause for his absence in the court on the day when the exparte decree was passed but because that application is preferred beyond the prescribed time and the request to condone the delay is declined. Viewed in that line the substantive application is I.A.N.8707 of 2009 which is to set aside the exparte decree. True this Court in Jayakumari v. Ismail Rawther referred to above held that in such situation revision against dismissal of the application to condone the delay is entertainable. But, that view was not followed in a subsequent decision of this Court in Lilly v. Ragesh (2004(3) KLT 712). After referring to the decision in Jayakumari v. Ismail Rawther this Court held that when the applications to condone the delay and set aside the exparte decree are disposed of simultaneously, what is required to be challenged is the order dismissing application to set aside the exparte decree where ofcourse it is open to the party concerned to challenge correctness of the order dismissing application to condone the delay. Hence it was held that revision petitions were not maintainable and that the proper remedy available to the defendant was to CRP Nos.540 & 541/2010 3 challenge dismissal of the application to set aside the exparte decree under Order XLIII Rule 1(d) of the Code . Same view has been taken by another learned Single Judge of this Court in an unreported decision dated January 19, 2007 in unnumbered W.P.(C) of 2007. It is held that even if the order passed under Section 5 of the Limitation Act is not challenged in separate proceedings, petitioner therein was entitled to challenge that order also in the appeal preferred against the dismissal of the application to set aside the dismissal of the suit. The same principle should apply in the matter of an appeal against order refusing to set aside the exparte decree. I am in agreement with the view taken in Lilly v. Ragesh and the unreported decision referred to supra. It follows that these revisions are not maintainable and are only to be dismissed but, without prejudice to the right of petitioner to challenge correctness of the order on I.A.No.8707 of 2009 under Order XLIII Rule 1(d) of the Code and in such appeal to challenge the correctness of order dismissing I.A.No.43 of 2010. With the above observations these revisions petition are dismissed as not maintainable. I.A.No.2565 of 2010 in C.R.P.No.540 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks