IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 OP(C).No. 121 of 2010(O) ------------------------ AGAINST THE ORDER DATED 20/08/2010 IN IA 1041/05 IN OS.56/1998 of SUB COURT, CHERTHALA .................... PETITIONER/ADDITIONAL 2ND DEFENDANT: -------------------------------------------- LAILA BEEVI, W/O.EASSA SAHIB, THEKKEPARAMBIL, VADAKKUM MURI, CHERTHALA VADAKKE VILLAGE, CHERTHALA TALUK. BY ADV. SRI.C.K.SAJEEV SRI.BALA BINDU RESPONDENTS/COUNTER PETITIONERS/ORGL.PLAINTIFF& ADDL.DEFENTS 3 TO 7: ----------------------------------------------------------------- 1. AISHA BEEVI, SRAMBICAL, KADAKKARAPALLY MURI, KADAKKARAPALLY VILLAGE, CHERTHALA TALUK-688529 2. ZAKEER HUSSIAN, H.NO.41/268, VALIYAKULAM WARD, ALAPPUZHA (ADDL.3RD DEFENDANT)-688001. 3. HABEEB MUHAMED, THEKKEPARAMBIL, VADAKKUM MURI, CHERTHALA VADAKKE VILLAGE, CHERTHALA TALUK. (ADDL.4TH DEFENDANT)-688524 4. ABDUL NAZAR, THEKKEPARAMBIL, VADAKKUM MURI, CHERTHALA VADAKKE VILLAGE, CHERTHALA TALUK. (ADDL.5TH DEFENDANT)-688524 5. ANVOR SADIQUE, THEKKEPARAMBIL, VADAKKUM MURI, CHERTHALA VADAKKE VILLAGE, CHERTHALA TALUK. (ADDITIONAL 6TH DEFENDANT)-688524 6. ASHRAF, THEKKEPARAMBIL, VADAKKUM MURI, CHERTHALA VADAKKE VILLAGE, CHERTHALA TALUK. (ADDL.7TH DEFENDANT)-688524 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.121 of 2010 --------------------------------------- Dated this 30th day of September, 2010 JUDGMENT Defendant No.2 in O.S.No.56 of 1998 of the court of learned Sub Judge, Cherthala is the petitioner before me. Respondent No.1 filed the suit against her husband, defendant No.1 who subsequently expired claiming maintenance with charge over the suit property. Original defendant expired on 18-08-2003. Thereafter his legal representatives including petitioner got themselves impleaded on 08-12-2003 and that was followed by an ex parte decree on 29-11-2004. On 20-10-2005 petitioner filed I.A.No.1041 of 2005 to set aside the ex parte decree and to condone the delay of 317 days. Learned Sub Judge allowed these applications on condition of petitioner depositing Rs.50,000/- in court within one month from the date of order (See Ext.P5, order). That order is under challenge in this original petition under Article 227 of the Constitution. Learned counsel contends that even if respondent No.1 is entitled to get maintenance, so far as petitioner is concerned the liability is only to the extent of property he has acquired from deceased defendant No.1. O.P(C).No.121 of 2010 : 2 : 2. Ext.P5 is a conditional order where there is a direction to deposit Rs.50,000/- as cost to allow the applications. If cost is not deposited and I.A.No.1041 of 2005 is finally disposed of against petitioner, he has a statutory remedy of filing an appeal under Order 43 Rule 1(d) of the Code of Civil Procedure. In such an appeal it is open to the petitioner to challenge the condition or excessiveness of the deposit ordered, as the case may be. When a statutory remedy is available there is no reason why this court should interfere with the conditional order in exercise of its power under Article 227 of the Constitution as if learned Sub Judge has passed an order without jurisdiction. Resultantly this original petition is closed without prejudice to right of petitioner to challenge the ultimate order on I.A.No.1041 of 2005 as provided under law. (THOMAS P JOSEPH, JUDGE) Sbna/-