IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 WP(C).No. 1936 of 2007(E) ------------------------- AGAINST THE ORDER IN IA.604/2005 IN AS.96/2003 of SUB COURT,KATTAPPANA .................... PETITIONER: ------------ M.PARAMANANDAM, S/O. MUTHUSWAMI, RATHI BHAVAN, PATHINIPPARAMETTU BHAGAM, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK, REP. BY POWER OF ATTORNEY HOLDER P.VARADARAJ @ KANNAN, S/O. M.PARAMANANDAM, PATHINIPPARAMETTU, PAMPADUMPARA P.O. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENTS: ------------- 1. NEGI, S/O. SALIM, KOROTHU HOUSE, PATHINIPPARAMETTU, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK. 2. K.SANTHAN, S/O. KILLIMALA, KOROTHU HOUSE, PATHINIPPARAMETTU, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK. 3. BIJU, S/O. LALY, PUTHENPURACKAL HOUSE, PATHINIPPARAMETTU, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK. 4. BENNY, EZHUPATHINCHIRA HOUSE, PATHINIPPARAMETTU, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK. 5. P.J.BABY, S/O. JOB, PUTHENPARAMBIL HOUSE, PATHINIPPARAMETTU, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 1936/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF IA 604/05 IN AS 96/03 ON THE FILE OF SUB COURT, KATTAPPANA DT. 16.5.05 EXT.P2. COPY OF THE ORDER DT. 31.10.06 IN IA 604/05 IN AS 96/03 ON THE FILE OF SUB COURT, KATTAPPANA /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 1936 OF 2007 --------------------- Dated this the 24th day of March, 2008 JUDGMENT This writ petition is filed with a prayer to set aside Ext.P2 order. There was an appeal preferred against the dismissal of OS 397/98 on the file of the Munsiff court, Kattappana, with a petition to condone the delay of 148 days. It was numbered as AS 96/03. The petition to condone the delay, which was numbered as IA 1433/03, was allowed on condition to pay a cost of Rs. 1,000/- to the respondent on or before 2.4.05. Admittedly the writ petitioner did not pay the amount within the stipulated time. So a consequential order followed and the appeal was dismissed. Then an application was filed to set aside the order of dismissal of that IA due to non-payment of cost under Section 151 of the CPC on the ground that the writ petitioner was suffering from jaundice and bed ridden. The court below found that the petitioner could have very well filed a CMA for getting the order set aside or modified. When there is a provision in law, invoking the extra ordinary jurisdiction under Section 151 of the CPC is not justified. 2. Learned counsel for the respondents has brought to my notice the decision of this court in Kallyani amma v. Kunhikrishnan [1971 KLT 309]. The correctness of Kallyani amma v. Kunhikrishnan [1971 KLT 309] has WPC NO 1936/07 2 been made in a Division Bench decision in Sulakhakunju v. Krishna Pillai [1985 KLT 81]. But the case here is altogether on a different footing. What has been done in this case is that an application is filed to set aside the order. When an order is passed on merits with a condition, that order cannot be set aside because it is not one for default and the correct practice is to approach the appellate or revisional forum, as the case may be. Without resorting to it, invoking Sec.151 of the CPC and filing an application cannot be said to be proper. So the court below was right in holding that the application under Sec. 151 of the CPC is not maintainable. Therefore, I confirm the decision of the court below making it clear that if there are remedies available to the writ petitioner, he can pursue the same. The authorities before whom the application is filed may consider the question of delay sympathetically for the reason that petitioner has been prosecuting the case in the wrong forums. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 1936/07 3 WPC NO 1936/07 4 WPC NO 1936/07 5