Omanakuttan Pilla vs State Bank of India, Anandakumar

Thomas P. Joseph, J.—Petitioner is the second Defendant in O.S. No. 252 of 2008 of the Court of learned Sub Judge, Palakkad. An ex parte decree was passed in the case. Petitioner filed I.A. No. 1270 of 2010 to set aside the ex parte decree. That application was allowed as per order dated October 19, 2010 on condition that Petitioner paid to the first Respondent `.3,000/- by way of cost within 10days from the date of order. The application was posted on 30.10.2010. The cost was not deposited. On November 26, 2010 Petitioner filed C.M.A. No. 127 of 2010 challenging the said order. That appeal was rejected by the learned District Judge, Palakkad as per Ext.P2, judgment dated December 13, 2010 holding that since the application is allowed in favour of Petitioner, no appeal under Order 43 of the CPC would lie. Ext.P1, order of learned Principal Sub Judge is under challenge in this proceeding. At the time of hearing, learned Counsel submitted that Petitioner may be permitted to challenge Ext.P2, judgment as well in this proceeding.

First Respondent has appeared through counsel. I have heard counsel on both sides.

Though the challenge in this proceeding is to Ext.P1, order only, I am inclined to treat it as challenge to Ext.P2, judgment also having regard to the facts and circumstances of the case and considering the manner in which I propose to dispose of this petition.

By Ext.P1, order dated October 19, 2010 on I.A. No. 1270 of 2010 learned Sub Judge allowed the application to set aside the ex parte decree on condition that Petitioner paid cost to the first Respondent on or before 29.10.2010. It was also directed that

in case Petitioner fails to make payment as aforesaid, this petition shall stand dismissed. Call on 30.10.2010"

It is not disputed that as directed in Ext.P1, order cost was not paid to the first Respondent. If that be so, by non compliance with the condition there was an automatic dismissal of the application on 29.10.2010. C.M.A. No. 127 of 2010 was filed on November 26, 2010, in other words, after I.A. No. 1270 of 2010 stood dismissed. In that view of the matter, learned District Judge was not correct in holding the view that the C.M appeal was not maintainable since the application was allowed. It appears that learned District Judge did not notice that Ext.P1, order is a self working order whereby the application stood dismissed on non compliance of the condition. In that view of the matter, C.M appeal was maintainable under Order 43 Rule 1(d) of the Code. Ext.P2, judgment of learned Sub Judge cannot stand and is liable to set aside.

Since the request now made by the Petitioner is only to grant some time to the Petitioner to deposit the cost and since first Respondent has entered appearance before me and is represented by counsel I do not consider it necessary that the C.M appeal should be remitted to the learned District Judge. Resultantly this original petition is allowed in the following lines:

(i) Ext.P2, judgment passed by the learned District Judge, Palakkad in C.M.A. No. 127 of 2010 is set aside and that appeal will stand allowed. The time for deposit of the cost as directed by learned Sub Judge in Ext.P1, order dated October 19, 2010 on I.A. No. 1270 of 2010 is extended for a period of three weeks from this day. To that extent, Ext.P1, order dismissing

(ii)Petitioner shall deposit the cost in the trial court within the said period and on such deposit the ex parte decree against Petitioner will stand set aside.

(iii)It is made clear that if the condition is not complied within the aforesaid time, this original petition will stand dismissed in conformation of Ext.P1, order and Ext.P2, judgment.