IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 CRP.NO. 224 OF 2010() --------------------------------- AGAINST THE ORDER DATED 17/02/2010 IN IA.423/2009 IN AS.92/2009 OF DISTRICT COURT, KASARAGOD .................... REVN. PETITIONER(S): DEFENDANT ---------------------------------------------------- B.NARAYANA,AGED 50 YEARS,S/O.T.KANNAN, RESIDING AT NELKALA,VIDYANAGAR POST, KASARAGOD TALUK,KASARAGOD (DIST). BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): RESPONDET/PLAINTIFF -------------------------------------------------------------- ANIL KUMAR,AGED 43 YEARS, S/O.RAVEENDRA,RESIDING AT SWEET HOUSE, VIDYANAGAR,KASABA VILLAGE,KASARAGOD TALUK, KASARAGOD DISTRICT. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.224 of 2010 ==================================== Dated this the 15th day of July, 2010 O R D E R Petitioner suffered a decree for return of advance of money based on an alleged agreement for sale dated 12.04.2002 in O.S. No.317 of 2007 of the court of learned Munsiff, Kasargod. Petitioner challenged that judgment and decree in A.S. No.92 of 2009 before the learned Sub Judge, Kasargod but since the appeal was presented beyond prescribed time it was accompanied by I.A.No.423 of 2009 to condone the delay. Learned District Judge was not impressed by the reason stated for condonation of delay and dismissed I.A. No.423 of 2009. That order is sought to be revised in this revision petition invoking Section 115 of the Code of Civil Procedure (for short, “the Code”). 2. I have heard learned counsel for petitioner on maintainability of the revision petition. Learned counsel states that no decree has been drawn up consequent to the dismissal of A.S.No.92 of 2009 following refusal to condone delay. C.R.P. No.224 of 2010 -: 2 :- 3. The Supreme Court in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 [1] KLT 198 (SC) dissenting from the view taken in Esar Contructions v. Ramakrishna Reddy (2000) 6 SCC 94) has held that when an application to condone delay is dismissed and consequently appeal also is dismissed, it amounts to merger of the decree of the trial court. The Supreme Court has referred to the Full Bench decision of this Court in Thambi v. Mathew (1987 [2] KLT 848 (F.B.). Following that decision this Court in Leena v. State (2010 [2] KLT 836) has held that when an appeal is dismissed or rejected following dismissal of application for condonation of delay, that dismissal is subject to a Second Appeal and hence it is necessary to draw up a decree consequent to dismissal of the appeal. It follows that when I.A. No.423 of 2009 is dismissed and consequently A.S.No.92 of 2009 is also dismissed or rejected it amounts to a decree as defined in Sec.2(2) of the Code and hence a decree has to be drawn up following dismissal or rejection of A.S.No.92 of 2009 which is subject to a Second Appeal as provided under law as the Supreme Court held in Shyam Sundar Sarma v. Pannalal Jaiswal (Supra). If the appellate court has C.R.P. No.224 of 2010 -: 3 :- not so far drawn up a decree it is necessary that it did so. It will be open to petitioner to challenge that decree in Second Appeal if law permits him to do so. Civil Revision Petition is closed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv