IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 CRP.No. 551 of 2008() --------------------- AGAINST THE ORDER DATED 10/01/2008 IN C.M.A 100/04 IN IA 2784/02 IN OS.661/1996 of II ADDL. DISTRICT COURT, PALAKKAD .................... REVN. PETITIONER(S): APPELLANTS/PETITIONERS/DEFENDANTS ------------------------------------------------------ 1. CHANDRAMOHAN, AGED 49 YEARS, S/O.RAMAKRISHNAN, RAMANCHENNATH HOUSE, WEST YAKKARA, PALAKKAD. 2. RAJEEVALOCHANAN, AGED 45 YEARS, S/O.RAMAKRISHNAN, -DO- BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP VIJAYAKUMAR RESPONDENT(S): RESPONDENTS/RESPONDENTS/PLAINTIFFS. -------------------------------------------------- 1. ISMAIL FAROOK, S/O.MOHAMMED HANEEFA-RAWTHER, DIARA STREET, KOPPAM AMSOM, PALAKKAD. 2. C.K.MOHAMMED, S/O.MAMMI HAJI, METTUPALAYAM STREET, KOPPAM AMSOM, PALAKKAD. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P No.551 OF 2008 -------------------------------- Dated this the 23rd day of March 2010 ORDER Revision petitioners are defendants 2 and 3 in O.S No.661 of 1996 on the file of Sub Court, Palakkad. The above suit was one for specific performance of an agreement of sale in which an exparte decree was passed against the defendants. Defendants 2 and 3, the revision petitioners, applied for setting aside the decree passed against them exparte moving an application under Order 9 Rule 13 CPC. The decree holders/plaintiffs resisted that application. The learned Munsiff after hearing the counsel on both sides dismissed that application. The order of the Munsiff was challenged by these defendants preferring an appeal as C.M.A No. 100 of 2004 before the District Court, Palakkad. As there was a delay of 12 days, an application was also filed under Section 5 of the Limitation Act to condone the delay in preferring the appeal. After having an enquiry on the delay petition, the learned District Judge dismissed that application not being satisfied with the cause shown for condonation. Subsequently, the appeal was also rejected. As against the order dismissing the petition to condone delay these defendants preferred a writ petition. This court allowed that writ petition. Setting aside the order of the court below rejecting the C.R.P No.551 OF 2008 Page numbers petition moved for condoning the delay the court below was directed to dispose the appeal on merits within the time limit fixed. Pursuant thereto the appeal was heard by the learned District Judge and the impugned judgment in the writ petition was passed dismissing the appeal. Concurrent decision rendered by the two courts below declining the request of the petitioners to set aside the exparte decree passed against them is challenged in the revision. 2. Notice was ordered to the respondents. Since service could not be effected on them even after considerable delay, petitioners were directed to effect service by special messenger and also to give notice to the counsel appearing for the decree holders in the execution proceedings taken from the exparte decree. Service was effected as directed, but the respondents have not entered appearance. 3. I heard the learned counsel for the revision petitioners. Perusing the judgment rendered by the learned District Judge, it is seen that despite a direction issued by this court in the writ petition No.4935 of 2006 by judgment dated 17/08/2007 directing disposal of the appeal on merits the maintainability of the appeal was proceeded with. Objction canvassed by the respondent that the appeal was not maintainable contending that the writ petition was only against C.R.P No.551 OF 2008 Page numbers the dismissal of the delay condonation petition was upheld by the court below, and a conclusion was drawn that the appeal was not maintainable. After drawing such a conclusion, the merit of the appeal was also considered with reference to the facts and circumstances presented in the case. Procedure followed by the court below as above, and the conclusion drawn in the impugned judgment that the appeal in view of the alleged default of the defendants in not challenging the order dismissing the appeal separately, but, only of challenging the order rejecting the condonation petition by way of the writ petition, is not only erroneous but flouting the direction and orders issued by this court in the judgment rendered in the writ petition. When this court in the judgment rendered in the writ petition has commanded the court below to dispose the appeal on its merits, it was not open to the court below to examine the question whether the nonraising of a challenge against the dismissal of the appeal made previously in anyway affected the entertainability of the appeal. The order of the court below to condone delay of 12 days was set aside by this court directing for disposal of the appeal on its merits. That presupposes that the previous order passed dismissing the appeal also stood annulled by the judgment rendered by this court, and the court below was bound to dispose the appeal on merits. Though the court below has considered the C.R.P No.551 OF 2008 Page numbers appeal on merits after entering a finding that the appeal is not maintainable, it cannot be considered as a fair and proper disposal of the appeal, I find that the impugned judgment cannot be sustained. The court below is directed to consider the appeal afresh and dispose it on merits complying with the direction issued by this court in the judgment rendered in the writ petition referred to above. The court below shall give notice to the plaintiffs/decree holders on the hearing of the appeal. Notice to the counsel appearing for the plaintiffs/decree holders in the execution proceedings, if pending, shall be treated as sufficient service on them. The court below shall hear and dispose of the appeal on its merits as expeditiously as possible, at any rate, within two months from the date of completion of service on the plaintiffs/decree holders after effecting service on them as indicated above. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv