IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 OP(C).No. 3328 of 2011(O) ------------------------------------- IA.203/2011 IN AS.23/2004 of II ADDL. DISTRICT COURT, PALAKKAD .................... PETITIONER ------------------- BEEPATHUMMA,W/O.MUHAMMED,PADINJARETHARA, THENNILAPURAM AMSOM DESOM,ALATHUR TALUK. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): ------------------------- ABDUL KHADER,S/O.ASSAINAR,RESIDING AT PADINJARATHARA,THENNILAPURAM AMSOM AND DESOM, ALATHUR TALUK-678541. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.3328/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT-P1:-A TRUE COPY OF THE JUDGMENT IN O.S.37/2000 DT:12.11.2003 ON THE FILE OF ALATHUR MUNSIFF COURT. EXHIBIT-P2:-A TRUE COPY OF THE JUDGMENT IN A.S.NO.23/2004 ON THE FILE OF II ADDL.DISTRICT JUDGE,PALAKKAD DTD 11.01.2010. P3:- COPY OF THE PETITION FILED IN SUPPORT OF THE PETITION TO RESTORE THE APPEAL ON FILE DTD. 7.2.2011. P4:- COPY OF THE IA. NO.203/2011 IN AS. 23/2004 ON THE FILE OF 2ND ADDITIONAL DISTRICT JUDGE, PALAKKAD DT.D 3.6.2011. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3328 of 2011 --------------------------------------- Dated this 17th day of October, 2011 JUDGMENT Petitioner is the appellant in A.S.No.23 of 2004 of the court of learned Second Additional District Judge, Palakkad. That appeal was dismissed for default. Petitioner filed I.A.No.203 of 2011 for its re-admission under Order 41 of Rule 19 of the Code of Civil Procedure. Learned Second Additional District Judge passed a conditional order on 26.05.2011 allowing the application on terms of payment of cost within one week and making it clear that if cost is not paid the application will stand dismissed. Petitioner could not pay the cost within the time aforesaid. The application was taken up on 03.06.2011 (after expiry of the period of one week granted as per order dated 26.05.2011). On 03.06.2011 learned Second Additional District Judge ordered, “Cost is not paid. Consign file to records section”. The challenge is to the order dated 03.06.2011 . 2. Since cost was not deposited within one week from 26.05.2011 as ordered there is an automatic dismissal of I.A.No.203 of 2011 which is clear from the order dated O.P(C).No.3328 of 2011 -: 2 :- 26.05.2011 that the records (of the appeal) shall be consigned to the section obviously because I.A.No.203 of 2011 (for re- admission of the appeal) stood dismissed. 3. If that be so, the ultimate order of dismissal of I.A.No.203 of 2011 is appealable under Order 43 Rule 1(t) of the Code of Civil Procedure. When the statutory remedy of appeal is available, there is no reason to entertain this original petition under Art.227 of the Constitution. Without prejudice to the right of petitioner to challenge the impugned order by way of appeal as provided under the law, this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-