IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 WP(C).No. 28750 of 2008(V) -------------------------- OS.738/2004 of MUNSIFF'S COURT,KOTTAYAM .................... PETITIONER: --------------- P.U.KRISHNAN KUTTY, S/O KUTTIYAMMA, PADINJAREPARAMBIL HOUSE, MARIYAPPALLY KARA, NATTAKOM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SMT.A.SREEKALA RESPONDENTS: --------------- BHAVANIKUTTIYAMMA, SREENILAYAM HOUSE, IRINJAL, MUTTAMBALAM P.O., KOTTAYAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== W.P.(C) No. 28750 of 2008 ========================== Dated this the 30th day of September, 2008. JUDGMENT The petitioner who is the brother of the plaintiff in a suit for fixation of boundary filed as O.S. No. 738 of 2004 before the Munsiff's Court, Kottayam, challenges Exts.P6 and P7 orders passed by the Munsiff. He was the defendant in the suit. An ex parte decree was passed against him on 31.03.2006. Alleging that he was unaware of the ex parte decree and he came to know of the same only during execution, on 14.03.2008, he filed I.A. No. 851 of 2008 under Order 9 Rule 13 C.P.C for setting aside the ex parte decree. He also filed I.A. No. 852 of 2008 to condone the delay of 730 days in filing I.A. No. 851 of 2008. His application to condone the delay was dismissed as per Ext.P6 order dated 25.06.2008 and consequently I.A. No. 851 of 2008 was also dismissed on the same day as time barred. Hence this writ petition. 2. The remedy of the writ petitioner is not to straightaway approach this Court and file a writ petition under Article 227 of W.P.(C) No. 28750/2008 : 2: the Constitution of India. Ext.P7 order is appealable and in that appeal he can also canvass the correctness of the Ext.P6 order dismissing his application to condone the delay. In case the petitioner files an appeal under Order 43 Rule 1 C.P.C against Ext.P7 order within two weeks from today, the proceedings in execution of the ex parte decree shall be kept in abeyance for a period of three weeks from today in the course of which the petitioner may move the appellate court for appropriate interim order, if he is entitled to the same. This writ petition is disposed of as above. Dated this the 30th day of September, 2008. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 28750/2008 : 3: