IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 23065 of 2010(O) -------------------------- OS.20/2001 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER: --------------- SIDIQUE, S/O.KIZHAKUMCHERY CHENALI ABDUL KADER, THICHOORU VILLAGE, THALI DESOM, THALAPPILLY TALUK. BY ADV. SRI.K.I.SAGEER RESPONDENTS: --------------- 1. PATUMMA, W/O. ITHIRIVALAPPIL MUHAMMED, PALLIPADAM DESOM, THIRUMITTAKODE II VILLAGE, OTTAPPALAM TALUK AND D/O. KALATHINGAL KUTTIMOIDU THICHOORU VILLGE, THALI DESOM, THALAPPILLY TALUK. OTTAPALAM P.O., PIN - 679101. 2. SAFIYA, W/O. POOVATHINGAL MOIDEN HAJI, -DO- -DO-. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.23065 of 2010 --------------------------------------- Dated this 23rd day of July, 2010 JUDGMENT This writ petition is in challenge of Ext.P1, order whereby I.A.Nos.8420 and 8450 of 2009 in O.S.No.20 of 2001 of the court of learned Additional Sub Judge-II, Thrichur were allowed on condition of payment of cost of Rs.7,500/- to the respondents. O.S.No.20 of 2001 is a suit for partition filed by the respondents against petitioner and others. According to the petitioner that suit was dismissed for default on 18-05-2004 and thereafter, petitioner had no notice about the suit. While so, in July, 2009 himself and other defendants got notice on I.A.Nos.2838 of 2009 filed by respondents for passing a final decree. On enquiry petitioner and others learned that the suit was restored to file and a preliminary decree was passed on 30-11-2005. But, according to the petitioner, he did not get any notice on the application to restore the suit. He filed I.A.Nos.8420 and 8450 of 2009 to set aside the ex parte decree and to condone the delay of 1490 days. Learned Sub Judge was inclined to allow those applications but on payment of cost of Rs.7,500/-. That order is under challenge. Learned counsel contends that there was no : 2 : necessity to saddle petitioner with liability to pay cost in the circumstances stated above and at any rate cost ordered is exorbitant and beyond paying capacity of petitioner. 2. If cost ordered by the learned Sub Judge is not paid consequence is a dismissal of I.A.Nos.8420 and 8450 of 2009. Dismissal of the application to set aside ex parte decree is subject to an appeal under Order XLIII Rule 1(d) of the Code of Civil Procedure. In that appeal it is open to the petitioner to challenge correctness of dismissal of I.A.Nos.8420 of 8450 of 2009 on all grounds including that petitioner was not liable to pay any cost and that cost awarded at any rate, is excessive. In that situation there is no reason why this court should interfere with the impugned order at this stage. Resultantly without prejudice to the right of petitioners to challenge the ultimate order on I.A.Nos.8420 and 8450 of 2009 if it goes against petitioner, as provided under the Code this writ petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-