IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 FAO.NO. 161 OF 2010() --------------------- {I.A.NO.504/09 & I.A.NO.503/09 IN OS.18/2009 OF SUB COURT, CHENGANNUR} .................... APPELLANTS/PETITIONERS ------------------------------- 1. CHANDRAN PILLAI, SANTHA SADANAM, VENMONYTHAZHAM, VENMONY. 2. RETNAMMA, PARIYIDATHU VEEDU, IZHAKKEVAZHI, THRIPPERUMTHURA BY ADV. SRI.P.B.SAHASRANAMAN RESPONDENT(S): RESPONDENTS ------------------------------------- 1. DILEEP KUMAR @ DILEEP BALAKRISHNA PILLAI KALICKAL DILEEP BHAVANAM, VENMONY PADINJARU. 2. BALAKRISHNA PILLAI, KALICKAL DILEEP BHVANAM, VENMONY PADINJARU. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- C.M.Appln No.1020 of 2010 & F.A.O.No.161 of 2010 --------------------------------------- Dated this the 1st day of July, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. Plaintiffs, in a suit for recovery of money, are the appellants. The suit was dismissed for default. An application for restoration, with an application to condone delay was filed. Thereafter, when those applications were taken up, there was no appearance for the plaintiffs. Accordingly, that was also dismissed. The plaintiffs have filed this appeal against those orders with an application to condone delay of 92 days in instituting this appeal. 2. Though the plaintiffs attribute the reason for lack of appearance before the court below to the inability of their counsel to appear on that day owing to his hospitalisation, we are clear in our mind that an application for restoration, when dismissed for F.A.O.No.161 of 2010 :: 2 :: default, can be sought to be restored invoking Order IX Rule 9, read with Section 141 of the Code of Civil Procedure, if needed with a petition under Section 5 of the Limitation Act. Under such circumstances, we do not deem it necessary to entertain this C.M. Application and FAO. Without prejudice to the right of the appellants to file an application in terms of Order IX Rule 9 read with Section 141 of the Code of Civil Procedure along with a petition under Section 5 of the Limitation Act, in accordance with law, before the court below, this C.M. Application and FAO are dismissed. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy// P.S. to Judge.