IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 22916 of 2008(C) -------------------------- OS.217/2003 of II ADDL.SUB COURT,KOZHIKODE OS.291/2002 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONER: ------------ 1. P.M.PRAMOD, S/O.,LATE P.M.KURUP AGED 39 YEARS, POUTHIYAMADATHIL HOUSE IRINGAL AMSOM DESOM, AYANIKKADU P.O., KOYILANDY TALUK, KOZHIKODE DT 2. SHEENA W/O.PRAMOD, AGED 30 YEARS., 'VISMAYAM' NELLIKODE AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DT BY ADV. SRI.P.R.SREEJITH SRI.K.B.SAJEESH RESPONDENTS: ------------- N.V.PARAMESWARAN S/O.RAJAN, AGED 35 YEARS, DARSHANA, KOTTOOLI AMSOM DESOM,KOZHIKODE TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.22916 of 2008 ------------------------------- Dated this the 30th July, 2008. J U D G M E N T Petitioners are the defendants in O.S.No.291 of 2002 and O.S.No.217 of 2003, on the file of Sub Court, Kozhikode. Petitions were filed respectively by the petitioners in the two suits to set aside the ex parte decree passed against them. Petitions were originally allowed by the court directing payment of cost of Rs.5000/= and deposit of Rs.50,000/= as security. Petitioners challenged that order before this Court in W.P.(C) No.21738 of 2007 contending that cost awarded is excessive and the direction for cash deposit is unsustainable. This Court under Ext.P1 judgment dated 2.8.2007 modified the order and reduced the cost to Rs.2500/= and also permitted petitioners to furnish security, instead of cash deposit. Petitioners thereafter deposited the cost and also furnished security. Security was found to be insufficient. Consequently, petitions were dismissed. This petition is filed under Article 227 of the Constitution of India challenging the order dismissing the applications filed under Rule 13 of Order IX of Code of Civil Procedure. W.P.(C) No.22916 of 2008 2 2. The learned counsel appearing for the petitioners was heard. 3. The argument of the learned counsel is that as Ext.P3 order passed by learned Sub Judge in I.A.No.4092 of 2007, finding that security furnished is not sufficient, cannot be challenged in appeal, petition under Article 227 of the Constitution of India is filed, though appeal is provided against an order dismissing the application under Order IX Rule 13 of Code of Civil Procedure. 4. The order passed dismissing an application under Order IX Rule 13 of Civil Procedure Code to set aside the ex parte decree is appealable, as provided under Order XLIII Rule 1 of Code of Civil Procedure. Therefore, remedy of the petitioners as against dismissal of the applications is to file an appeal. For the reason that Ext.P3 order passed in I.A.No.4092 of 2007 is not appealable, petitiners are not entitled to challenge the order passed under Order IX Rule 13 of Code of Civil Procedure, by filing a petition under Article 227 of the Constitution of India. Ext.P3 order passed in I.A.No.4092 of 2007 is an order recording that security furnished is not sufficient. In such circumstances, while challenging the order passed by the Sub W.P.(C) No.22916 of 2008 3 Judge under Order IX Rule 13 of Code of Civil Procedure, petitioners are entitled to challenge Ext.P3 order also. With liberty to file an appeal as against the orders dismissing the applications filed under Order IX Rule 13 of Code of Civil Procedure, this petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.