IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 OP(C).No. 3156 of 2011() ------------------------ OS.2206/2008 of PRL.MUNSIFF COURT,THIRUVANANTHAPURAM .................... PETITIONER: ----------- N. PUSHPAKUMARAN NAIR, NISHANIVAS, PANAMPATTA, AUVANEESWARAM P.O., KOLLAM. BY ADVS. SRI.S.BALACHANDRAN (KULASEKHARAM) SRI.V.R.GOPU RESPONDENT: ----------- VIVIAN JOLLY, T.C.11/1868 (1), THILAK NAGAR, NALAMCHIRA P.O., THIRUVANANTHAPURAM-695 001. THIS O. P. (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JJJ OP(C).No. 3156 of 2011() APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF PETITION DATED 23.9.2010 IN OS.2206/2008. EXT.P2 COPY OF PETITION IN I.A.8440/10 FOR SETTING ASIDE EXPARTE DECREE. EXT.P3(A),P3(B) COPY OF THE ORDERS IN I.A.8440/10 DT.11.7.11 AND 29.7.2011 EXT.P4 COPY OF PETITION IN I.A.5838/11. EXT.P5 COPY OF PETITION IN I.A.5839/11 RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S.TO JUDGE JJJ THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3156 of 2011 ==================================== Dated this the 03rd day of October, 2011 J U D G M E N T Defendant in O.S. No.2206 of 2008 of the court of learned Sub Judge, Thiruvananthapuram is the petitioner before me, challenging Exts.P3(a) and P3(b), orders. Respondent sought recovery of rent arrears to the tune of Rs.72,483/- with interest from 15.11.2005 onwards. Petitioner claimed that he ceased to be a tenant from July, 2002 onwards on his surrendering the building to one John Jeffrey, his landlord. The case was posted for trial in the list. Petitioner was set ex parte. Petitioner filed I.A. No.7804 of 2010 to set aside the ex parte order. Later an ex parte decree was passed on 24.09.2010. Petitioner filed I.A. No.8440 of 2010 to set aside the ex parte decree producing a Medical Certificate in support of that application. Learned Munsiff as per Ext.P3(a), order dated July 11, 2011 allowed that application on condition that petitioner shall deposit 1/3rd of the plaint amount on or before 29.07.2011 and get ready for evidence by 29.07.2011. It was observed that otherwise the application will stand dismissed. Petitioner did not comply with the direction and instead, filed two applications for enlargement of time and for O.P(C) No.3156 of 2011 -: 2 :- review of order dated July 11, 2011. Those applications, I am told were not considered and I.A. No.8440 of 2010 was dismissed by order dated 29.07.2011. Thus the orders dated 11.07.2011 and 29.07.2011 are under challenge. 2. The order dismissing the application to set aside the ex parte decree is subject to an appeal under Rule 1(d) of Order XLIII of the Code of Civil Procedure. If petitioner has sought for enlargement of time and review of the order and those applications are not considered it is for the petitioner to set up those matters also as grounds while challenging correctness of the order dismissing the application to set aside the ex parte decree. In that view of the matter challenge in this Original Petition cannot be sustained. Original Petition is closed without prejudice to the right of petitioner to challenge the correctness of the order dated 29.07.2011 dismissing I.A. No.8440 of 2010 as provided under law if petitioner is otherwise entitled to that course and raise all grounds as are available to him in the said appeal as provided under law. THOMAS P. JOSEPH, JUDGE. vsv