IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 OP(C).No. 3206 of 2011(O) ---------------------------------- E.P.164/10 IN OS NO.101/89 OF MUNSIFF COURT, VAIKOM PETITIONER ------------------ NABEESA BEEVI, THOTTINOZHATHU VEETIL, THALAYOLAPARAMBU KARA, VAIKOM TALUK, KOTTAYAM DISTRICT, P.O.THALAYOLAPARAMBU-686605. REPRESENTED BY HER DAUGHTER AND GUARDIAN LAILA BEEVI. BY ADVS. SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.K.S.BALAKRISHNAN RESPONDENT(S): ------------------------ 1. SULAIMAN, S/O. NAVURKANI RAWTHER, RESIDING AT MAHI MANZIL, KOTTIPPLIPARAMBIL, VELOORKARA, KOTTAYAM VILLAGE, KOTTAYAM TALUK, P.O.KOTTAYAM-686501. 2. P.S. HAMSA, S/O. SAIDUMOHAMMED MOOSAMBI PULAPARMBIL HOUSE, VELOORKARA VILLAGE, KOTTAYAM TALUK, P.O.KOTTAYAM-686501. 3. ABDUL RAHIM, S/O. PAREETH, MANIPARAMBIL HOUSE, VELOORKARA, VELOORKARA VILLAGE,KOTTAYAM TALUK, P.O.KOTTAYAM. PIN-686501. 4. SULEKHA BEEVI, W/O. MOIDEEN RAWTHER THOTTINEZHATH VEETIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKOM TALUK, P.O.THALAYOLAPARAMBU-686605. 5. SALIM, MOIDEEN RAWTHER, THOTTINEZHATH VEETIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKOM TALUK, P.O.THALAYOLAPARAMBU-686605. ....2 ..2.. 6. NASEEMA, D/O.MOIDEEN RAWTHER, THOTTINEZHATH VEETIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKOM TALUK, P.O.THALAYOLAPARAMBU-686605. 7. SEENATH, D/O.MOIDEEN RAWTHER, THOTTINEZHATH VEETIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKOM TALUK, P.O.THALAYOLAPARAMBU-686605. 8. HAIRUNNISSA, D/O.MOIDEEN RAWTHER, THOTTINEZHATH VEETIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKOM TALUK, P.O.THALAYOLAPARAMBU-686605. 9. NISSAR, S/O.MOIDEEN RAWTHER, THOTTINEZHATH VEETIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKOM TALUK, P.O.THALAYOLAPARAMBU-686605. R2 & R3 BY ADV. P.B. KRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU OP(C).No. 3206 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE MEDICAL CERTIFICATE DATED 6-1-2011 ISSUED BY THE AMRITA INSTITUTE OF MEDICAL SCIENCE IN THE NAME OF NABEESA BEEVI. EXT.P2 : TRUE COPY OF THE MEDICAL CERTIFICATE DATED 6-1-2011 ISSUED BY THE AMRITA INSTITUTE OF MEDICAL SCIENCE IN THE NAME OF AJARA BEEVI. EXT.P3 : TRUE COPY OF THE JUDGMENT IN OS NO.101/89 BY PASSING PRELIMINARY DECREE BY MUNSIFF'S COURT VAIKOM. EXT.P4 : TRUE COPY OF THE JUDGMENT IN IA NO.911/08 OS NO.101/89 OF PASSING OF FINAL DECREE IN OS NO.101/89 OF THE MUNSIFF'S COURT, VAIKOM. EXT.P5 : TRUE COPY OF THE FINAL DECREE DRAWN IN THE STAMP PAPER DATED 11/3/2009 IN IA NO.911/08 IN OS NO.101/89 OF THE MUNSIFF'S COURT, VAIKOM. EXT.P6 : TRUE COPY OF THE IA NO.1129/2011 IN OS NO.101/89 FILED BY THE PETITIONER PRAYING TO CONDONE THE DELAY IN FILING AN IA TO SETASIDE THE EXPARTE DECREES ON THE FILE OF MUNSIFF'S COURT VAIKOM. EXT.P7 : TRUE COPY OF THE I.A. NO.1131/2011 IN OS NO.101/89 FILED BY THE PETITIONER PRAYING TO SETASIDE THE DECREES IN OS NO.101/89 ON THE FILE OF MUNSIFFS COURT VAIKOM. EXT.P8 : TRUE COPY OF THE ORDER DATED 19-08-2011 IN EP NO.164/2010 IN OS NO.101/89 ON THE FILE OF MUNSIFF'S COURT VAIKOM. EXT.P9 : TRUE COPY OF THE ORDER DATED 19-8-2011 IN EA NO.297/2011 IN E.P NO.164/2010 IN OS NO.101/89 ON THE FILE OFTHE MUNSIFFS COURT VAIKOM. EXT.P10: TRUE COPY OF THE SKETCH ISSUED BY THE CENTRAL SURVEY OFFICE, TRIVANDRUM REGARDING THE LIE OF PROPERTIES INCLUDING PROPERTIES IN SY.NO.224/29,224/33 OF VADAYAAR VILLAGE WITH SETTLEMENT REGISTER. EXT.P11 : TRUE COPY OF THE SKETCH PREPARED BY THE SURVEYOR IN COMMISSION IN OS NO.17/89 ON THE FILE OF THE MUNSIFFS COURT VAIKOM. EXT.P12 : TRUE COPY OF THE JUDGMENT DATED 26-8-2011 IN OPC NO.2830/2011 OF THIS HON'BLE COURT. STU EXT.P13 : TRUE COPY OF THE ORDER DATED 20-09-2011 IN IA NO.1129/2011 IN OS NO.101/89 ON THE FILE OF THE MUNSIFFS COURT VAIKOM. EXT.P14 : TRUE COPY OF THE ORDER DATED 20/9/2011 IN IA NO.1131/2011 IN OS NO.101/89 ON THE FILE OF THE MUNSIFF'S COURT VAIKOM RESPONDENTS' EXHIBITS : NIL //TRUE COPY/ STU P.A. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3206 of 2011 ==================================== Dated this the 04th day of October, 2011 J U D G M E N T Respondents 2 and 3 appears through counsel. Petitioner claiming to be the guardian of the third judgment debtor in E.P. No.164 of 2010 filed O.S. No.101 of 1989 of the court of learned Munsiff, Vaikom filed this petition challenging Exts.P13 and P14, orders. There was ex parte preliminary and final decrees against the third judgment debtor. In the course of execution, petitioner claiming to be the guardian of the third judgment debtor who is allegedly insane filed I.A. No.1129 and 1131 of 2011 on the trial side to set aside the ex parte preliminary O.P(C) No.3206 of 2011 -: 2 :- and final decrees and condone the delay. Learned Munsiff refused to condone the delay by Ext.P13, order and consequently dismissed I.A. No.1131 of 2011 by Ext.P14, order. It is pointed by learned counsel for respondents 2 and 3 that remedy available to the petitioner is to challenge correctness of Ext.P14, order in an appeal as provided under Order XLIII Rule 1 (d) of the Code of Civil Procedure and in that appeal challenge the correctness of Ext.P13, order. Learned counsel for petitioner would contend that dismissal of I.A. No.1131 of 2011 is not on merit but merely for the reason that learned Munsiff has refused to condone the delay as prayed in I.A. No.1129 of 2011. O.P(C) No.3206 of 2011 -: 3 :- In the light of decisions of this Court in Lakhsmikutty Panickathi v. Bharghavi Panickathi (1987 [2] KLT 562), (2004 [3] KLT 712) and C.K. Thomas & Co. v. Muthoot Leasing and Finance Ltd. (2007 [2] KLT 32) whatever be the reason for dismissal of I.A. No.1131 of 2011 be it for the reason that learned Munsiff has refused to condone the delay, there is dismissal of the application to set aside the ex parte and preliminary and final decrees remedy therefore is to prefer appeal against Ext.P14 under Rule 1(d) of Order XLIII of the Code and in that appeal challenge the correctness of Ext.P13, order leading to the dismissal of I.A. No.1131 of 2011. When that O.P(C) No.3206 of 2011 -: 4 :- statutory remedy of appeal is available to the petitioner this Court is not required to exercise the power under Article 227 of the Constitution. Learned counsel for respondents 2 and 3 pointed out that in view of Ext.P12, order petitioner cannot challenge the delivery order. I make it clear that the said order was passed when petitioner challenged the delivery order while in this proceeding what is under challenge is dismissal of the application to set aside the ex parte preliminary and final decrees and hence notwithstanding Ext.P12, order it is open to the petitioner to O.P(C) No.3206 of 2011 -: 5 :- challenge correctness of Ext.P14, order (and in that appeal challenge the correctness of Ext.P13, order as well) in the appeal that may be preferred against Ext.P14, order. With the above direction this Original Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv