IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 OP(C).No. 3734 of 2011(O) ------------------------------------- [I.A. NO.1804/2010 IN AS.NO.269/2010 OF ADDITIONAL DISTRICT COURT,KOTTAYAM DATED 11/02/2011] .................... PETITIONER: ------------------- SETHULAKSHMI,D/O.BHARGAVIAMMA, KOCHUPURACKAL HOUSE,VELOOR KARA, VELOOR VILLAGE, KOTTAYAM TALUK. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.T.R.SADEESAN, SRI.T.S.SHYAM PRASANTH, SMT.DHANYA CHANDRAN. RESPONDENTS: ------------------------ 1. ROHINI P.NAIR,D/O.KAMALAMMA,PURAKKADU HOUSE,VELOOR VILLAGE, VELOOR KARA, KOTTAYAM TALUK, PIN- 686 003. 2. VALSALAKUMARI @ MOLLY, D/O.KAMALAMMA, PURAKKADU HOUSE,VELOOR VILLAGE, VELOOR KARA, KOTTAYAM TALUK, PIN- 686 003. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3734/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1. TRUE COPY OF THE PRELIMINARY DECREE PASSED BY THE SUB COURT, KOTTAYAM DATED 25.03.2004. EXHIBIT P2. TRUE COPY OF THE FINAL DECREE IN O.S 203/96 PASSED BY THE SUB COURT KOTTAYAM ON 30.08.2008. EXHIBIT P3. TRUE COPY OF THE APPEAL IN A.S 269/2010 BEFORE THE DISTRICT COURT, KOTTAYAM. EXHIBIT P4. TRUE COPY OF THE IA 1804/2010 IN AS 269/2010 FILED BEFORE THE DISTRICT COURT, KOTTAYAM. EXHIBIT P5. TRUE COPY OF THE ORDER DATED 11.02/2011 PASSED BY THE ADDL.DISTRICT COURT, KOTTAYAM IN I.A NO. 1804/2010 IN A.S NO. 269/2010. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3734 of 2011 ==================================== Dated this the 17th day of November, 2011 J U D G M E N T Petitioner is one of the defendants and as the learned counsel submits, the contesting defendant in O.S. No.203 of 1996 of the court of learned Sub Judge, Kottayam. The court passed Exhibit P1, preliminary decree for partition dated 25.03.2004 followed by Ext.P2, final decree dated 30.08.2008. Challenging that final decree, petitioner filed A.S. No.269 of 2010 in the court of learned Additional District Judge, Kottayam with I.A. No.1804 of 2010 to condone the delay of 756 days. Learned District Judge passed Ext.P5, order dismissing I.A. No.1804 of 2010 and consequentially A.S. No.269 of 2010 was also been dismissed. The challenge in this proceeding is to Ext.P5, order refusing to condone the delay as prayed for in I.A. No.1804 of 2010. 2. It is not disputed that following dismissal of I.A. No.1804 of 2010 learned District Judge has dismissed A.S. No.269 of 2010 as well. A Full Bench of this Court in Thambi v. Mathew (1987 [2] KLT 848 (FB) has held that when an appeal is presented with an application to condone the delay there is a proper presentation of the appeal and that on dismissal of the O.P(C) No.3734 of 2011 -: 2 :- appeal as the application for condonation of delay is dismissed, the order dismissing the appeal is a decree subject to a Second Appeal. That decision has been referred to by the Supreme Court in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 [1] KLT 198 (SC) where, in paragraph 12 it is held that the remedy is by way of challenge to the decree. 3. If that be so, remedy of petitioner is not to challenge Ext.P5, order on I.A. No.1804 of 2010 but to challenge the decree dismissing A.S. No.269 of 2010 in Second Appeal (if petitioner is otherwise entitled to that course) and in that Second Appeal challenge correctness of the order dismissing I.A. No.1804 of 2010. 4. Learned counsel submits that dismissal of I.A. No.1804 of 2010 is not for proper reasons. Assuming so, that is a ground which petitioner can take up in the Second Appeal that may be preferred against judgment and decree in A.S. No.269 of 2010. In that view of the matter this Original Petition cannot be entertained. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv