IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 18635 of 2008(R) -------------------------- OS.63/2005 of PRINCIPAL SUB COURT,KOCHI .................... PETITIONER: ------------ THANKAMMA, W/O. GOPALAN KANNAPPASSERRY HOUSE,ELAMKUNNAPPUZHA MURI, ELAMKUNNAPPUZHA VILLAGE,KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.V.PHILIP MATHEWS SRI.N.K.THANKACHAN RESPONDENT: ------------- SREENARAYANA SAHAYA MARANAVASYA SANGHAM ELAMKUNNAPPUZHA VILLAGE, KOCHI TALUK. REP. BT PRESENT PRESIDENT SRI.T.K.SANKARAN S/O.KUMARAN, THALENAVELIYAKATH HOUSE ELAMKUNNAPPUZHA MURI. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 18635 OF 2008 ------------------------------------------ Dated this the 20th day of June, 2008 JUDGMENT Petitioner is the first defendant in O.S. 63 of 2005. She filed I.A. 1153 of 2007, an application to condone the delay under Section 5 of Limitation Act and I.A 1152 of 2007 under Rule 13 of Order IX of Code of Civil Procedure to set aside the exparte decree. Under Ext.P4 order learned Munsiff condoned the delay on payment of a cost of Rs.3,000/- to be paid on 20.2.2008. As petitioner did not pay the amount, under Ext.P5 order the petition to condone the delay and under Ext.P6 the petition to set aside the decree were dismissed. It is challenged in this writ petition filed under Article 227 of Constitution of India. 2. When a petition is dismissed under Rule 13 of Order IX of Code of Civil Procedure, an appeal is provided under Order XLIII Rule 1(d) of the Code. Eventhough no appeal will lie as against an order under Section 5 of the Limitation Act, along with the order dismissing the application under Rule 13 of Order IX of the Code, WPC18635/08 2 petitioner is entitled to challenge that order also. In such circumstance when there is alternate remedy of appeal available to the petitioner, she is not entitled to approach this court under Article 227 of Constitution of India. Petition is dismissed with liberty to the petitioner to challenge Exts.P4, P5 and P6 orders by filing an appeal. M. SASIDHARAN NAMBIAR, JUDGE Okb/-