IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 OP(C).No. 3422 of 2011(O) ------------------------- I.A.NO.5792/2009 IN OS.NO.643/1993 of PRINCIPAL SUB COURT, THIRUVANANTHAPUAM. .................... PETITIONERS/DEFENDANTS: ----------------------------------------- 1. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD JUNCTION, NANTHANCODE, KOWDIAR P.O.,THIRUVANANTHAPURAM-695 003. 2. THE PROJECT CHIEF ENGINEER, SABARIMALA DEVELOPMENT PROJECT, TRAVANCORE DEVASWOM BOARD, NANDANCODE.P.O., THIRUVANANTHAPURAM-695 003. 3. THE DIVISIONAL ENGINEER, SABARIMALA DEVELOPMENT PROJECT, CHENGANNUR P.O., ALLEPPEY DISTRICT-688 001. BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE BY ADV. SRI.P.GOPAL RESPONDENT(S): PLAINTIFF -------------------------------------------- O.M. MATHEW, OLITHADATHIL HOUSE, PUTHENCRUZ P.O., ERNAKULAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BEENA KURIAKOSE, D/O.KURIAKOSE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, KOTHAMANGALAM P.O.-686 691. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.3422/2011 O APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.643 OF 1993 ON THE FILE OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM FILED BY THE RESPONDENT. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.643/1993 ON THE FILE OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXT.P3 TRUE COPY OF I.A.NO.5792 OF 2009 ALONG WITH THE AFFIDAVIT FILED BY THE PETITIONERS IN O.S.NO.643 OF 1993 ON THE FILE OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXT.P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA.NO.5792 OF 2009 IN O.S.NO.643 OF 1993 ON THE FILE OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXT.P5 TRUE COPY OF THE ORDER DATED 8.4.2011 IN I.A.NO.5792 OF 2009 IN O.S.NO.643/1993 PASSED BY THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3422 of 2011 -------------------------------------- Dated this the 25th day of October, 2011. JUDGMENT Petitioners as the defendants in O.S.No.643 of 1993 of the court of learned Principal Sub Judge, Thiruvananthapuram have suffered an exparte decree for payment of money and a declaration as to the breach of an agreement and enforceability of a supplementary agreement. Petitioners filed I.A.No.5792 of 2009 to set aside the exparte decree. That application was allowed as per Ext.P5, order dated 08.04.2011 on condition that petitioners deposited `13,12,080/, as security and `2,000/- by way of cost within one month from the date of the order. That order is under challenge. 2. It is submitted by learned counsel that the condition imposed by the learned Sub Judge is too onerous and that it requires interference. 3. It is seen from Ext.P5, order dated 08.04.2011 that if the conditions are not complied within the time specified, there will be an automatic dismissal of I.A.No.5792 of 2009 on the expiry of that time. The period prescribed for compliance of the order has expired much earlier. In otherwords, there is an automatic dismissal of I.A.No.5792 of 2009 and the ultimate order is appealable under Order XLIII, Rule 1(d) of the Code of Civil Procedure. 4. It is pointed out by the learned counsel that an appeal at this point of time would be barred by limitation. But, the law permits petitioner to seek OP(C)No.3422/2011 2 condonation of the delay if circumstances warranted such a course. The mere fact that an appeal is barred by limitation is not a ground to interfere in the matter under Article 227 of the Constitution of India. The Original Petition in the above circumstance, is closed without prejudice to the right of petitioners to challenge the ultimate order by way of appeal and request the appellate court to condone the delay in filing such appeal in case circumstances warranted that. THOMAS P.JOSEPH, Judge. cks