IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 15597 of 2009(O) -------------------------------------- OS.813/2004 of PRL.SUB COURT,THRISSUR .................... PETITIONER/RESPONDENT/DEFENDENT: ---------------------------------------------------------- CHINNALI ABDULLA, S/O. MOIDEEN CHERUVAYA DESOM, KADIKKAD AMSOM, CHAVAKKAD TALUK. BY ADV. MR.RAJIT RESPONDENT(S): ------------------------- FAISAL, S/O. KEEZHAPPATTU KHALID, EDAKKARA DESOM, KADIKKAD AMSOM, CHAVAKKAD TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.15597 OF 2009 (O) ----------------------------------- Dated this the 5th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i) to set aside the order dated 11.4.2008 in I.A.No.6498/2005 and I.A.No.6499/2005 in O.S.No.813/2004 of the Principal Sub Court, Thrissur. ii) to grant such other reliefs deemed fit to this Honourable Court. 2. Petitioner is the defendant in O.S.No.813/2004 on the file of the Principal Sub Court, Thrissur. Suit was one for specific performance based on an agreement of sale. Suit was dismissed for non payment of the balance sale price before the court as ordered. The plaintiff thereupon moved an application under Order IX Rule 9 of CPC with a petition to condone delay for setting aside that order of dismissal and restoring of the suit to file. The learned Sub Judge passed Ext.P5 order allowing that application on terms. Propriety and correctness of that order is impeached by the defendant WPC.15597/09 2 contending that no notice of the proceedings was served on him and further that the application filed under Order IX Rule 9 of CPC could not have been entertained as the dismissal of the suit was not for nonappearance of the plaintiff on the date of hearing. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and the facts and circumstances presented, I find that the petitioner has an alternate efficacious remedy of challenging Ext.P5 order by way of an appeal as provided in the CPC. Challenging Ext.P5 order by way of a writ petition is not the proper course to be followed and in that view of that matter, I find that the writ petition is not entertainable. Writ petition is dismissed without prejudice to the rights of the petitioner to challenge Ext.P5 order before the appropriate forum, as envisaged by law, if so advised. S.S.SATHEESACHANDRAN JUDGE prp WPC.15597/09 3 S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009