IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 FAO.No. 235 of 2005() ------------------------------ AS.147/2003 of II ADDL. DISTRICT COURT, PALAKKAD O.S. NO.356/1996 OF MUNSIFF COURT, PALAKKAD. .................... APPELLANT(S): PETITIONER/APPELLANT -------------------------- PADMANABHAN, S/O.LATGE GOPALAN, THAMBATTI VEETTIL, WEST YAKKARA, YAKKARA AMSOM, PALAKKAD TALUK. BY ADVS.MR.T.M.SUNIL SMT.S.CHITHRA MR.A.S.BRIJESH RESPONDENT(S): RESPONDENTS/RESPONDENT ------------------------------- 1. SWAMINATHAN, S/O.LATE GOPALAN, THAMBATTI VEETTIL, WEST YAKKARA, YAKKARA AMSOM, PALAKKAD TALUK. 2. UNNIKRISHNAN, S/O. LATE GOPALAN, THAMBATTI VEETTIL, WEST YAKKARA, YAKKARA AMSOM, PALAKKAD TALUK. R1 & R2 BY MR.D.KRISHNA PRASAD MR.D.NARENDRANATH MR.M.HARISHARMA MR.T.P.ELDHOSE SMT.O.K.SANTHA THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... F.A.O.NO.235 OF 2005 ............................................. Dated this the 8th day of September, 2009 J U D G M E N T This is an appeal preferred against the order in I.A.No.1726/2004 in A.S.No.147/2003. A.S.No.147/2003 was dismissed for default. An application was filed to restore the said appeal to file. On 19.5.2005 there was a representation made by the counsel for the petitioner seeking time. The court refused to grant time and dismissed that application. It is against that decision, the appeal has been preferred. This is opposed by the other side. The learned counsel had relied upon two decisions of this court reported in Muhammed v. Narayani (1991 (2) KLT 287) and Manoharan v. Ezhome Grama Panchayat (2001 (1) KLT 905). In Muhammed's case the subject matter was that a suit was dismissed for default. In stead of filing an application to get it restored, an appeal was filed. The court held, the proper remedy is to file an application under Order IX Rule 9 to get the dismissal set aside. The said decision will have no application to the facts of this case. : 2 : F.A.O.NO.235 OF 2005 The other decision is Manoharan's case. It was a case where a suit was dismissed for default. Then, an application for restoration was filed. It was also dismissed for default. Later an application was filed to restore that I.A to file under Section 151 of C.P.C. The trial court rejected that application on the ground that such an application is not maintainable since it is an appealable order under Order XLIII Rule 1 (c) of C.P.C. 2. The matter came up before the High Court. This Court considered the entire question and held in Para 7 last sentence that “therefore, I find that the lower court was in error in finding that the above application is not sustainable under Section 151 of the C.P.C since appeal is provided against that order under XLIII R(1) y C.P.C.”. So, this decision points out that an appeal is maintainable. Therefore, the contention that no appeal is maintainable cannot be entertained. 3. Now going to the facts of the case. The suit for partition ended in the first court against which an appeal was preferred and in the appeal as it was not prosecuted it : 3 : F.A.O.NO.235 OF 2005 has been dismissed and a restoration application has been filed which also ended in dismissal. The question to be found is whether there are sufficient grounds to restore the restoration application to file. I think an opportunity can be given to find out whether restoration can be allowed and one need not be very technical on those aspects. 4. Therefore, I set aside the order passed by the learned IInd Additional District Judge, Palakkad passed in I.A.No.1726/2004 and direct him to restore I.A.No.1726/2004 to file and dispose it of after hearing both sides. The parties are directed to appear before the court below on 21.10.2009. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 4 : F.A.O.NO.235 OF 2005