IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 OP(C).No. 3703 of 2011(O) ----------------------------------- AGAINST THE ORDER DATED 03/09/2011 IN IA.809/2010 IN AS./2010 of SUB COURT, PERUMBAVOOR ............................................................................ PETITIONER(S): ----------------------- 1. RADHAMANI, D/O.NAMBI, AGED 48 YEARS, THATTAMPARAMBIL HOUSE, PULLUVAZHY, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, RESIDING AT W/O.VIZWANATHAN, PERUMANATH HOUSE, EAST ALUVA VILLAGE, EDATHALA NORTH P.O. 2. USHA, D/O.NAMBI, AGED 39 YEARS, THATTAMPARAMBIL HOUSE, PULLUVAZHY, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, RESIDING AT W/O.JAYAKUMAR, KANAKA MANDIRAM HOUSE, KADUNGALLUR PANCHAYATH, UNIYANNOOR P.O. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.C.SREEKUMARAN NAIR RESPONDENT(S): ------------------------ 1. AMBIKA, D/O.NAMBI, THATTAMPARAMBIL HOUSE, PULLUVAZHY KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK-683545. 2. VIJAYAN, AGED 40 YEARS, S/O.NAMBI (MENTALLY RETARRED) REP. BY AMBIKA, D/O.NAMBI, THATTAMPARAMBIL HOUSE, PULLUVAZHY KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK-683545. 3. MURUKESAN, S/O.NAMBI, AGED 48 YEARS, THATTAMPARAMBIL HOUSE, PULLUVAZHY KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK-683545. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SKV OP(C).No. 3703 of 2011(O) --------------------------------------- APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.82/2004 ON THE FILE OF THE MUNSIFF COURT, PERUMBAVOOR DATED 03.03.2004 P2: COPY OF THE WRITTEN STATEMENT FILED BY DEGENDENT NO.1 IN THE ABOVE CASE. P3: COPY OF THE JUDGMENT DATED 15.10.2007 IN THE ABOVE CASE. P4: COPY OF THE DECREE DATED 15.10.2007 IN THE ABOVE CASE. P5: COPY OF THE APPEAL MEMORANDUM FILED AGAINST THE JUDGMENT IN O.S. 84/2004 BEFORE SUB COURT, PERUMBAVOOR. P6: COPY OF THE AFFIDAVIR TO CONDONE DELAY. P7: COPY OF THE ORDER DATED 03.09.2011 IN I.A.NO.809/2010 IN THE UNNUMBERED APPEAL. RESPONDENT'S EXHIBITS: NIL /TRUE C OPY/ PA TO JUDGE SKV THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3703 of 2011 -------------------------------------- Dated this the 2nd day of December, 2011. JUDGMENT Defendants 2 and 3 in O.S.No.82 of 2004 of the court of learned Munsiff, Perumbavoor are the petitioners before me. Petitioners claimed that they were not served in the suit. The 1st defendant filed written statement and counter claim. The suit was dismissed and the counter claim was allowed. Petitioners filed appeal before the learned Sub Judge, Perumbavoor with I.A.No.809 of 2010 to condone the delay. As petitioners submit, the appeal was not numbered but only the application to condone the delay was numbered. That application was dismissed after hearing both sides. The said order is under challenge in this Original Petition. 2. Learned counsel submitted that since the appeal was not numbered, it has not been disposed of , nor any decree drawn up. 3. A Full Bench of this Court in Thambi v. Mathew (1987 (2) KLT 848) said that when an appeal is filed with an application for condonation of delay, there is a proper presentation of the appeal and when the appeal is dismissed consequent to dismissal of the applications to condone delay, there is a decree which is subject to a Second Appeal. The decision of the Full Bench has been referred by the Supreme Court in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198) with approval in paragraph 10. OP(C)No.3703/2011 2 This Court in Leena v. State (2010 (2) KLT 836) referring to the above decisions stated that when the appeal is dismissed pursuant to dismissal of the application for condonation of delay it is necessary to draw up a decree. 4. It follows that proper procedure which learned Sub Judge should have adopted was to number the appeal also along with the application for condonation of delay and dispose of the appeal consequent to the dismissal of I.A.No.809 of 2010 and draw up a decree consequent to the dismissal of the appeal. That procedure has to be followed. 5. If the appeal has not been numbered, learned Sub Judge has to number the appeal and pass consequential order on the appeal pursuant to the dismissal of I.A.No.809 of 2010 and that shall be followed by a decree being drawn up which will be subject to a Second Appeal as provided under law. 6. That being the proper course, this Original Petition against dismissal of I.A.No.809 of 2010 cannot be entertained. Original Petition is disposed of directing the learned Sub Judge, Perumbavoor to number the appeal, pass appropriate order on that appeal consequent to the dismissal of I.A.No.809 of 2010 and draw up a decree as provided under law. THOMAS P.JOSEPH, Judge. cks