IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 19775 of 2010(O) -------------------------- IA NO.172/2009 IN AS.55/2009 of DISTRICT COURT,KOLLAM .................... PETITIONER(S): --------------- AUGUSTIN, SON OF NICHOLAS, RESIDING AT PALIYOOR HOUSE, HOUSE NO.173, BHAVANA NAGAR, PRATHIBHA JUNCTION, KADAPPAKKADA, KOLLAM EAST VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): --------------- 1. EDWIN, SON OF SEBASTIAN, PALIYOOR HOUSE NO.174, BHAVANA NAGAR, PRATHIBA JUNCTION, KADAPPAKKADA, KOLLAM VILLAGE, KOLLAM DISTRICT. 2. JASMIN, D/O.PHILOMINA, PALIYOOR HOUSE NO.174, BHAVANA NAGAR, PRATHIBA JUNCTION, KADAPPAKKADA, KOLLAM VILLAGE, KOLLAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19775 of 2010 -------------------------------------- Dated this the 25th day of June, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P5, order on I.A.No.172 of 2009 in A.S.No.55 of 2009 of the Code of learned District Judge, Kollam. Petitioner filed the said appeal with a delay of 221 days and, to condone that delay filed I.A.No.172 of 2009. Learned District Judge has dismissed I.A.No.172 of 2009. That order is under challenge in this Writ Petition. 2. Consequent to the dismissal of the application for condonation of delay learned District Judge had to pass an order on the memorandum of appeal either rejecting or dismissing the same as barred by limitation. A rejection/dismissal of the appeal consequent to dismissal of application to condone the delay, as the decision of the Supreme Court in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198) has held is a decree and hence is appealable. This Court in Leena O.K. v. State and another (2010 (2) KHC 695) has held that when the memorandum of appeal is either rejected or dismissed consequent to dismissal of application to condone the delay the court concerned has to draw up a decree. That decree is appealable as held by the Supreme Court in the decision cited supra. If that be so, proper remedy of petitioner is to challenge rejection/dismissal of the appeal by preferring an appeal and in that appeal petitioner can set up the grounds he has WP(C) No.19775/2010 2 urged in this Writ Petition against dismissal of application to condone the delay. 3. At this stage learned counsel for petitioner has sought permission to withdraw the Writ Petition without prejudice to the right of petitioner to challenge the rejection/dismissal of appeal on the ground of delay by filing an appeal. In the circumstances stated permission is granted. Accordingly, this Writ Petition is dismissed as withdrawn without prejudice to the right of petitioner to challenge rejection/dismissal of the appeal on the ground of limitation setting forth grounds urged in the Writ Petition. THOMAS P.JOSEPH, Judge. cks