IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 SA.No. 793 of 1997(C) --------------------- AS.238/1989 of ADDL.DISTRICT COURT, THRISSUR OS.377/1985 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT(S)/APPELLANT/DEFENDANT: -------------- GOPALAN,THATTAPPARAMBATH HOUSE, VADANAPPILLY AMSOM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.K.MOHAMED RAVUF SRI.K.SAJAN VARGHESE RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- KUNHAYYAPPAKUTTY S/O.CHALIPPATTU HOUSE, VADANAPPILLY AMSOM DESOM, P.O., THRITHALLUR, TRICHUR DISTRICT. ADV. SRI.S.ANANTHAKRISHNAN SRI N K SUBRAMANIAM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.793 OF 1997 ----------------------------------- Dated this the 23rd day of September, 2010 J U D G M E N T The defendant is the appellant. Suit was one for recovery of possession, which was decreed in favour of the plaintiff by the trial court. The defendant preferred an appeal before the lower appellate court challenging the decree. The appeal was dismissed for default. The present second appeal is seen filed against the dismissal of such appeal for default by the court below. 2. When the appeal came up for hearing, there was no representation for the appellant. The respondent was present. It has been brought to my notice by the learned counsel for the respondent that the appellant had moved an application for setting aside the dismissal of his appeal for default by the lower appellate court and for restoration of the appeal to file to have a S.A.NO.793/97 2 disposal on merits. That application for restoration being dismissed by that court, it is submitted, an appeal was preferred before this Court as C.M.A.No.220 of 1997. That appeal was also dismissed confirming the order of the lower appellate court, dismissing the first appeal of the appellant for default. Though the order dismissing for default the first appeal of the appellant is styled as a judgment and a decree has followed such judgment, it is essentially an order passed under Order XLI Rule 19 of the CPC, from which, no second appeal will lie. In the case of an ex parte decree, it is open to the defendant to seek for setting aside that decree under Order IX Rule 13 of the CPC or to move an appeal against the decree as such if he has justifiable ground to do so, to challenge the merit of that decree in appeal. But so far as an order dismissing the appeal for default under Order XLI Rule 19 of the CPC, the remedy of the appellant is either to seek for restoration or to challenge such order, if it suffers from jurisdictional infirmity, under Section 115 of the CPC, or under Section 227 of the Constitution of India invoking the supervisory jurisdiction of this Court, provided, there is sustainable ground S.A.NO.793/97 3 to do so. The second appeal preferred against such order is found to be not entertainable. The learned counsel for the respondent has also brought to my notice that pending his appeal, in execution of the decree, recovery of the property had already been effected. Perhaps that may be reason that there is no representation from the side of the appellant for the last few postings. The appeal having found not entertainable, it is dismissed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.793 OF 1997 ----------------------------------- J U D G M E N T 23rd day of September, 2010 S.A.NO.793/97 5