IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 CRP.No. 488 of 2008() --------------------- AGAINST THE ORDER DATED 15/07/2006 IN IA.1123 & 1122/2006 IN OS.516/2001 of II ADDL.SUB COURT,ERNAKULAM .................... REVN. PETITIONER: (PETITIONER /PLAINTIFF) ------------------ SAJU, SANKOORIKKAL HOUSE, POONITHURA VILLAGE, PALARIVATTOM DESOM REPRESENTED BY POWER OF ATTORNEY HOLDER THANKAMMA VARGHESE, AGED 66 YEARS, W/O.LATE S.L.VARGHESE, SANKURIKKAL HOUSE, CHAMBAKARA, THOMAS PURAM, MARADU. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: ( RESPONDENTS/DEFENDANTS) ------------- 1. STANLEY, PALLIPARAMBIL HOSES FORT KOCHI VILLAGE, FORT KOCHI DESOM. 2. AMMINI JOSE, FLAT NO.B., J.M.TOWERS OPPOSITE CHINMAYA SCHOOL, PALLIKATTU TEMPLE ROAD, VADUTHALA DESOM, ERNAKULAM DISTRICT. BY ADV. SRI.P.JACOB VARGHESE (SR.) FOR R.1,2 SRI.VARUGHESE M EASO FOR R.2 SRI.VIVEK VARGHESE P.J. FOR R.1,2 SMT.PRAISHEEL PRAKASAM FOR R.2 SMT.ELIZEBETH MEERA FOR R.2 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.488 of 2008 ------------------------------- Dated this the 2nd July, 2008. O R D E R Petitioner is the plaintiff in O.S.No.516 of 2001, on the file of Sub Court, Ernakulam. The suit was dismissed for default. He filed I.A.Nos.1122 & 1123 of 2006, the former under Section 5 of Limitation Act to condone the delay of 103 days in filing the petitioner, and the latter under Order IX Rule 9 of Code of Civil Procedure to restore the suit. As per common order dated 15.7.2006, learned Sub Judge allowed the petitions on payment of cost of Rs.5000/= to the defendants, to be paid on or before 29.7.2006, and posted the case for payment of cost to 29.7.2006. The revision petition is filed challenging that order on 14.12.2007, after the dismissal of the applications later for non-payment of cost. The revision was filed with a petition to condone the delay, which was later condoned, as per order dated, 20.6.2008. CRP No.488 of 2008 2 2. The learned counsel appearing for petitioner and learned counsel appearing for respondents were heard. 3. Under Rule 1(d) of Order XLIII of Code of Civil Procedure, an appeal will lie against an order rejecting an application filed under Order IX Rule 9 of Code of Civil Procedure. Under Section 115(1) of Code of Civil Procedure, a revision will not lie, when an appeal lies. Therefore, when the order rejecting a petition filed under Order IX of Rule 9 of Code of Civil Procedure is appealable, the order cannot be challenged under Section 115 of Code of Civil Procedure. Hence revision will not lie. 4. The learned counsel appearing for the petitioner relying on the decision of a learned single Judge of this Court in Karuppan alias Cherunni v. Sankaran Nair (1972 KLT 643) argued that when the impugned order does not provide that if the cost to be paid thereunder is not paid, the petition will stand dismissed for dismissal of the petition, a second order is necessary and what could be challenged as provided under Rule 1(d) of Order XLIII of Code of Civil Procedure is only the second final order, and, the first order challenged therein is revisable. The learned Single Judge in that case CRP No.488 of 2008 3 did not hold that a revision will lie against the first order, after the final order is passed in the application. The facts of that case reveal that a petition filed to set aside the ex-parte decree was allowed on terms. But the order did not provide that if cost is not paid, petition will stand dismissed. Following the decision of the Madras High Court in Ramayya v. Lakshmayya (AIR 1944 Mad. 383) and Kotaiah v. Narasimhan (AIR 1949 Mad. 469), it was found that unless the order is a self-working order, first order cannot be challenged by filing an appeal, and appeal will lie only against the second order. In that case, appeal challenging the first order was dismissed as not maintainable. This Court allowed the C.M.P. filed by the party to treat it as a revision, and as the first order is revisable and it was allowed as the order was revised. But that cannot be applied to a case where even before filing the revision, by dismissing the petition for non- payment of cost, the petition was finally dismissed. In such a case, remedy of the petitioner is only to challenge the final order. In the final order, he is definitely entitled to challenge the first order directing to pay cost. As appeal will lie against the impugned order, revision will not lie. Revision petition is therefore dismissed. Petitioner is granted liberty to challenge the order in an appeal. CRP No.488 of 2008 4 The learned counsel appearing for petitioner submitted that period the petitioner was prosecuting this revision may be excluded while computing the period of limitation for filing the appeal. The learned counsel for the respondents opposed the same. It is a matter to be decided by the appropriate appellate court. M.SASIDHARAN NAMBIAR, JUDGE nj.