IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 OP(C).No. 429 of 2010(O) ------------------------ PETITIONER: ------------------- PAULSON, S/O.ARAIKKAL JOSEPH, THRIKKUMARAKUDAM DESOM, AYYANTHOLE VILLAGE, THRISSUR TALUK. BY ADV. SRI.NAGARAJ NARAYANAN RESPONDENTS: --------------- 1. KOVILAKAM CHITS & FINANCIAL SERVICES (P) LIMITED, KOORKKANCHERY DESOM, THRISSUR VILLAGE & TALUK, REP. BY ITS MANAGING DIRECTOR. 2. CLAMENT, S/O.THALAKKOTOOR VINCENT, CHELAKKOTTUKARA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK-680524 3. LIYO, S/O.THALAKKOTTOOR VINCENT, CHELAKKOTTUKARA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK-680524 4. JOHNSON, S/O.THALAKKOOTTOOR VINCENT, CHELAKKOTTUKARA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK-680524 5. GEORGE, S/O.THARAKAN JOSEPH, PALAKKAL DESOM, PALISSERY VILLAGE, THRISSUR TALUK-680561 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.429 of 2010 --------------------------------------- Dated this 22nd day of October, 2010 JUDGMENT Defendant in O.S.No.896 of 2002 of the court of learned Sub Judge, Thrissur is the petitioner before me challenging Exts.P3 and P4, orders. That was a suit for recovery of money which was decided ex parte, in the absence of petitioner. Petitioner filed Ext.P1, application to set aside the ex parte decree and judgment and Ext.P2, application to condone the delay of 466 days. Learned Sub Judge dismissed Exts.P1 and P2, applications as per Exts.P3 and P4, orders dated February 3, 2010. Vide Ext.P4, I.A.No.2533 of 2009 (Ext.P2) for condonation of delay has been dismissed stating reasons and consequently Ext.P1, application (I.A.No.2532 of 2009) to set aside the ex parte decree has also been dismissed. The said orders are under challenge under Article 227 of the Constitution. 2. I have heard counsel on the sustainability and maintainability of this petition under Article 227 of the Constitution. Learned counsel placing reliance on the decision in Jayakurmari Vs. Ismail Rawther (2001(2) KLT 551) contends that the order dismissing an application to condone the O.P(C).No.429 of 2010 : 2 : delay is amenable to the supervisory jurisdiction of this court under Article 227 of the Constitution. Hence the challenge to that order is maintainable. It is also contended that since the reason for dismissal of the application to set aside the ex parte decree is the refusal to condone the delay, dismissal of the application to set aside the ex parte decree must be taken as a consequential order following dismissal of the application to condone the delay and hence in the light of the decision in Jayakurmari Vs. Ismail Rawther (supra), petition under Article 227 of the Constitution is maintainable. 3. No doubt, an order refusing to condone the delay by itself is amenable to the supervisory jurisdiction of this court under Article 227 of the Constitution but, I must bear in mind that the said application is filed in an application to set aside the ex parte decree. In other words the main relief prayed for is to set aside the ex parte decree and, that application is maintainable on its own. It is only that since that application is not preferred within the prescribed time, petitioner has filed an application to condone the delay in filing that application so that, if delay is condoned the application to set aside the ex parte decree becomes in order. Therefore, contention that dismissal O.P(C).No.429 of 2010 : 3 : of the application to set aside the ex parte decree is something that follows the dismissal of application to condone the delay cannot be accepted. Dismissal of application to set aside the ex parte decree is subject to an appeal under Order XLIII Rule 1(d) of the Code of Civil Procedure (for short, “the Code”). Position may be different where the application is to condone the delay is dismissed, that order is under challenge in this court in exercise of supervisory power under Article 227 of the Constitution and in the meantime, the application to set aside the ex parte decree is also dismissed. Here, dismissal of both the applications is simultaneous. In such a situation, remedy of petitioner is to challenge dismissal of the application to set aside the ex parte decree under Order XLIII, Rule 1(d) of the Code. That, an appeal in such a situation is maintainable against the order refusing to set aside the ex parte decree is held by this court in Lakshmikutty Panickathi Vs. Bhargavi Panickathi (1987 (2) KLT 562) . In that decision it has been held that merely because the reason for rejection (of the application to set aside the dismissal of suit in that case) is the delay consequent to the rejection of the delay condonation petition in the absence of sufficient reason the order does not cease it to be an order under O.P(C).No.429 of 2010 : 4 : Order IX, Rule 9 of the Code. Same principle is applicable to dismissal of the application under Order IX, Rule 13 of the Code as well. 4. A direct authority on the point is Lilly Vs. Rajesh (2004(3) KLT 712). There, referring to the decision in Jayakurmari Vs. Ismail Rawther (supra) it has been held that where an application to condone the delay and to set aside ex parte decree are dismissed simultaneously remedy available to the party is to file an appeal under Order XLIII, Rule 1(d) of the Code against the application refusing to set aside the ex parte decree. 5. Another decision on the point is an unreported decision dated January 19, 2007 in unnumbered W.P.C.------- of 2007 where also the same view has been taken. Yet another decision is C.K. Thoma & Co. Vs. Muthoot Leasing and Finance Ltd. (2007(2) KLT 32). There, it has been held that even if the application under Order IX, Rule 13 of the Code was dismissed consequent to dismissal of the application filed under Sec.5 of the Limitation Act (to condone the delay), nevertheless it is an order in the application under Rule 13 of Order IX of the Code. In view of the above authorities, since the applications to O.P(C).No.429 of 2010 : 5 : condone the delay as well as to set aside the ex parte decree have been dismissed by the court below simultaneously, remedy of petitioner is not to file a petition under Article 227 of the Constitution against the order dismissing the application to condone the delay but, to prefer appeal against the order dismissing the application to set aside the ex parte decree as provided under Order XLIII, Rule 1(d) of the Code and in that appeal challenge correctness of the order dismissing application to condone the delay. Resultantly this petition is dismissed but, without prejudice to the right of petitioner to challenge the order declining to set aside the ex parte decree under Order XLIII, Rule 1(d) of the Code and in that appeal challenge correctness of the order refusing to condone the delay. (THOMAS P JOSEPH, JUDGE) Sbna/-