IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 FAO.NO. 224 OF 2009() --------------------- {IN I.A.1941/2008 IN OS.218/1996 OF SUB COURT, PALA} .................... APPELLANT/PETITIONER/PLAINTIFF: --------------------------------------- ABDUL MUTHALIB, S/O.MUHAMMED, AGED 65 YEARS, KOLEZATHKANIMEL HOUSE, NADACKAL KARA, TEEKOY VILLAGE, MEENACHIL TALUK. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW RESPONDENT(S): CR.PETITIONERS/DEFENDANTS: ------------------------------------------------------- 1. ALEY, W/O.MATHAI, KAROTTUPULLOLI HOUSE, VELLIKULAM KARA, THEEKOY VILLAGE, MEENACHIL TALUK. 2. MATHAI, S/O.MATHAI, KAROTTUPULLOLI HOUSE VELLIKULAM KARA, THEEKOY VILLAGE, MEENACHIL TALUK. 3. K.M.THOMAS,S/O.MATHAI, KAROTTUPULLOLI HOUSE, THEEKOY VILLAGE, MEENACHIL TALUK. NOW RESIDING AT POONCHOLA P.O., OTTASSERY VIA, PALAKKAD DISTRICT. 4. K.M.MATHEW, S/O.MATHAI, KAROTTUPULLOLI HOUSE, VELLIKULAM KARA, THEEKOY VILLAGE, MEENACHIL TALUK. FAO.NO. 224 OF 2009() :: 2 :: 5. K.M.CHACKO, S/O.MATHAI, KAROTTUPULLOLI HOUSE, VELLIKULAM KARA, THEEKOY VILLAGE, MEENACHIL TALUK, OTTIYITTI BHAGOM VELLIKULAM P.O. 6. AMMINI SEBASTIAN, D/O.MATHAI, NOW RESIDING AT PUTHENPARAKUNNEL, VELLANI P.O., ADUKKAM BHAGOM. 7. K.M.KURIAN, S/O.MATHAI, KAROTTUPULLOLIL HOUSE, VELLIKULAM KARA, THEEKOY VILLAGE, MEENACHIL TALUK. R6 BY ADVS. SRI.SHAJI THOMAS PORKKATTIL & SRI.T.V.VINU THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- F.A.O.NO.224 of 2009 --------------------------------------- Dated this the 18th day of May, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. The plaintiff is the appellant. The suit was dismissed for default. He applied for restoration. That application was allowed on terms. An amount of Rs.5,000/- was fixed as costs. The order was a self- working one. The amount was not paid in time. The application for restoration, therefore, stood dismissed automatically. The quantum of costs was challenged in an application under Article 227 of the Constitution. That was also dismissed. The dismissal of the suit, consequent to the dismissal of the application for restoration, is sought to be challenged by filing this FAO against the order recording the factum of non-payment of the costs. 2. Strictly speaking, an order which merely records the consequence of an order, by itself, will not be appealable. However, taking into consideration the F.A.O.NO.224 of 2009 :: 2 :: fact that the petitioner was worsted even in an application under Article 227 of the Constitution against the main order, we are inclined to give the appellant an opportunity to have the application restored. We, therefore, order that if the appellant pays an amount of Rs.7,500/- as costs, the suit will stand restored, provided such amount is paid within a period of 45 days from today. It is made clear that enlargement of time would not be considered under any circumstance. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ Certified that appellant has paid Rs.7,500/- (Rupees Seven thousand five hundred only) as cost to the counsel for the 6th respondent in compliance of the direction contained in the judgment dated 18.05.2010 in F.A.O.224/2009 vide memo c.f.3202/2010. Sd/- /- Registrar (Judicial)