IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 FAO.No. 170 of 2011() --------------------- OS.402/2006 of PRINCIPAL SUB COURT,TRIVANDRUM .................... APPELLANTS/PETITIONERS/DEFENDANTS: ----------------------------------------------------------------- 1. MOHANACHANDRAN, AGED 56 YEARS, S/O. MADHAVAN PILLAI, KOUTHUKAM, PUTHUKUNNIL, POWDIKONAM, THIRUVANANTHAPURAM. 2. GEETHA MOHAN, AGED 48 YEARS, KOUTHUKAM, PUTHUKUNNIL, POWDIKONAM, THIRUVANANTHAPURAM. BY ADVS. SRI.R.S.KALKURA, SRI.M.S.KALESH, SRI.HARISH GOPINATH, SRI.V.VINAY MENON, SRI.M.AJAY (IRUMPANAM). RESPONDENT(S): COUNTER PETITIONER/PLAINTIFF: -------------------------------------------------------------------------------- ANNA EAPAN GOPAL, W/O RAJAN GOPAL, P.O.BOX NO.3500, ADGAS ABBUDHABI, UAE FROM NO.1 HILL TOP GARDENS, KADAKAMPALLY, ANAYARA P.O., THIRUVANANTHAPURAM, KERALA, PIN-695 029. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss FAO.NO.170/2011 ORDER ON I.A.NO.1791/2011 IN F.A.O.NO.170/2011 DISMISSED 29/06/2011 SD/- THOTTATHIL B.RADHAKRISHNAN,JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE APPENDIX PETITIONER'S ANNEXURES: ANNEX.A1: COPY OF THE PLAINT IN O.S.402/2002 ON THE FILE OF THE PRINCIPAL SUB COURT, TRIVANDRUM. ANNEX.A2: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM IN O.S.402/2002 OF SUB COURT, TRIVANDRUM. ANNEX.A3: COPY OF THE WRITTEN STATEMENT TO THE COUNTER CLAIM IN O.S.402/2002 OF SUB COURT, TRIVANDRUM. ANNEX.A4: COPY OF THE I.A.7195/2009 IN O.S.402/2002 OF SUB COURT, TRIVANDRUM. ANNEX.A5: COPY OF THE I.A.7606/2009 IN O.S.402/2002 OF SUB COURT, TRIVANDRUM. ANNEX.A6: COPY OF THE OBJECTION IN I.A.7606/2009 IN O.S.402/2002 OF SUB COURT, TRIVANDRUM. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.S.TO JUDGE Kss Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.170 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29th day of June, 2011. Judgment Thottathil B.Radhakrishnan, J. The defendants in a suit for realization of money are the appellants. They have filed this appeal as if it is against a final order on an application filed under Order IX Rule 13 CPC. Going by the operative portion of the impugned order, we are of the view that it cannot be treated as a final order since term no.3 among the terms and conditions enumerated by the court below as those on which the ex parte decree can be set aside, is to the effect that the petition would be dismissed automatically after the expiry of one month. That event is contemplated on the failure of deposit of security fixed in terms of the earlier clauses. Though the word FAO170/11 -: 2 :- "automatically" is used, we are not persuaded by the submission of the learned counsel for the appellants that the said order is a final order because, the expression "would be dismissed" is an indication in language and law that there has to be yet another order on default of the performance of the condition as to deposit of security. In this view of the matter, we called for a report through the office of this Court and we are told that no further order has been passed after the impugned order. In the light of the aforesaid, we are clear in our mind that no appeal lies against the impugned order as it now stands since it is not a final order. Hence, it will be open to the appellants to move the court below for such relief as may be permissible in law either by way of review, enlargement of time, variation of conditions etc., as may be advised. We further order that if the appellants place any such application before the court below within three weeks from now, the FAO170/11 -: 3 :- same will be considered in accordance with law with notice to the plaintiff. Without prejudice to all such course, this FAO is dismissed without entering on merits. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/0407