IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 OP(C).No. 1235 of 2010(O) ----------------------------------- AGAINST THE ORDER DATED 01/12/2010 IN IA.476/2009 IN AS.92/2006 of ADDL.DISTRICT COURT,KOTTAYAM .................... PETITIONER (S): --------------------------- JOLLY ISSAC W/O.LATE ISSAC THOMAS (JUNIOR), RESIDING AT PLAPPALLIL HOUSE, MATHIRAPPALLY KARA, KOTHAMANGALAM. BY ADV. SRI.ALEX.M.SCARIA RESPONDENT(S): ------------------------- SHAKKELA SHUKOOR, W/O.P.A.ABDUL SHUCKOOR PUTHENPARAMBIL HOUSE, THIRUNAKKARA, KOTTAYAM-686001 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ----------------------------------------- O.P(Civil). NO. 1235 OF 2010 ---------------------------------------- Dated this the 21st day of December, 2010. JUDGMENT Respondent No.5 in A.S No.92 of 2006 of the Court of learned Additional District Judge Kottayam is the petitioner challenging Ext.P5, order to the extent it directed deposit of cost of Rs.10,000/- as a condition to re-hear the appeal which was disposed of as early as on 22.09.2008. Contention of learned counsel is that having found that there was no proper service of notice as petitioner in the appeal as provided under law, the learned, Additional District Judge was not correct in imposing cost and at any rate, cost imposed is excessive. 2. Learned Additional District Judge from the evidence of PW1, the Process Server, and Exts.P1 to P5 found that at that time PW1 attempted to serve notice of the appeal on petitioner, the letter had shifted her residence from Karapuzha to Kothamangalanm. The appeal arose from an order in insolvency proceeding. There were other litigations also. Learned Additional District Judge reached the conclusion that though, there was no service of notice on the petitioner strictly in accordance with the provisions of order 5 of the Code of Civil Procedure, evidence O.P(Civil). NO. 1235 OF 2010 2 revealed that petitioner was aware of pendency of the appeal but, took no steps to appear in the appeal. The appeal was disposed of on 29.9.2008. Learned Additional District Judge also considered the fact that the case involves more than Rs.8 crores allegedly due to the respondent and other creditors from the husband of petitioner. Husband of petitioner and petitioner herself were partner of the firm. 3. It is not as if learned Additional District Judge was acting without jurisdiction while directing deposit of cost. The question whether on the facts of the case cost could or should have been ordered or that cost is excessive are not matters required to be decided by this Court under Article 227 of Constitution of India. The ultimate order on I.A No. 476 of 2009, if it goes against petitioner for non deposit of cost is appealable under order 43 Rule 1(t) of the Code of Civil Procedure. The questions raised by petitioner in this petition can be raised by petitioner in such a proceeding. There is no reason why this court should interfere in the matter, at this stage in a proceeding under Article 227 of the Constitution. Hence without prejudice to the right of petitioner to challenge the ultimate order if it goes against her, this petition O.P(Civil). NO. 1235 OF 2010 3 is closed. THOMAS P. JOSEPH, JUDGE mns