IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 FAO.No. 238 of 2009() --------------------- AGAINST THE ORDER DATED 27/06/2009 IN IA 311/2009 IN OS.136/2008 of SUB COURT, CHENGANNUR .................... APPELLANT/PETITIONER/PLAINTIFF. --------------------------------------------------- OMANAKUTTAN, VIRUTHIPARAMBIL, VENMONY THAZHAM MURI, VENMONY VILLAGE. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW RESPONDENT(S): CR.PETITIONERS/DEFENDANTS. ----------------------------------------- 1. RAMACHANDRAN PILLAI, MANNADICKAL VEETTIL, CHERIYANADU EAST MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK. 2. AJITH KUMAR, S/O. RAMACHANDRAN PILLAI, MANNADICKAL VEETTIL, CHERIYANADU EAST MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK. 3. ANIL KUMAR, S/O. RAMACHANDRAN PILLAI, MANNADICKAL VEETTIL, CHERIYANADU EAST MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK. 4. GOPALAKRISHNA PILLAI, AGED 61 YEARS, S/O. NARAYANA PILLAI, VIRUTHIPARAMBIL, VENMONY THAZHAM MURI, VENMONY VILLAGE. 5. CHANDRAN PILLAI, S/O. NARAYANA PILLAI, VIRUTHIPARAMBIL, VENMONY THAZHAM MURI, VENMONY VILLAGE. 6. RETNAMMA, D/O. JANAKIAMMA, PERIYEDATHU VEETTIL, THRIPPERUMTHURA KIZHAKKUM MURI, THRIPPERUMTHURA VILLAGE. 7. RATHEEDEVI, AGED 42 YEARS, W/O. KARUNAKARAN PILLAI, KARUNALAYAM IKKAD, KODUMON, PATHANAMTHITTA DISTRICT. 8. ANIL KUMAR (MINOR), S/O. RATHEEDEVI (D7), KARUNALAYAM IKKAD, KODUMON, PATHANAMTHITTA DISTRICT. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. NO: 238 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd Day of November, 2009. JUDGMENT K. M. Joseph J., This appeal is directed against the order passed in I.A. No: 311 of 2009, which is an application filed under Section 5 of the Limitation Act to condone the delay of 89 days in filing I. A. No: 310 of 2009. I.A No: 310 of 2009 was under Order 9 Rule 9. It appears that the court below found that there was no sufficient reason to condone the delay and accordingly that application was dismissed. 2. We heard the learned counsel for the appellant. 3. The learned counsel for the appellant points out that a writ petition was filed challenging the order taking the view that the appeal will not lie. In the Writ petition filed challenging the impugned order, the learned Judge dismissed the writ petition on the F.A.O. NO: 238 OF 2009 :2: ground that the petitioner has an efficacious remedy of challenging the order passed on the application for restoration by way of an appeal as provided under order XLIII Rule 1(c) of C.P.C. 4. Learned counsel for the appellant further submitted that no order was passed on the application filed for restoration of the suit as I.A. No: 312 of 2009. We sought report from the Sub Court, Chengannur in this regard. The report would show that I.A. No: 310 of 2009 had been filed for restoration along with I.A. No: 311 of 2009 for condonation of delay in filing the petition for restoration. When the delay petition was dismissed, consequently the petition for restoration of I.A. No: 310 of 2009 was also dismissed on 27.6.2009. 5. Order XLIII Rule 1(c) reads as follows: “An appeal shall lie from an order under Rule IX of Order 9 rejecting the application (in a case opened to appeal) for an order to set aside the delay of suit.” F.A.O. NO: 238 OF 2009 :3: 6. Going by the report received, I.A. No:310 of 2009 was filed for restoration along with I.A. 311 of 2009, for condonation of delay in filing the restoration petition. The application for restoration of suit is I.A. No: 310 of 2009. There is no order passed on I.A. No: 310 of 2009, which was dismissed on 27.6.2009. As far as this appeal is concerned, as already noted, being order in an application to condone delay, no appeal lies. 7. Therefore, without going into the merits, this appeal is dismissed as it is not maintainable, but without prejudice to the right of the appellant to challenge the order passed in I.A. No: 310 of 2009 in O.S. No: 136 of 2008. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/