Prema vs G. Thampi and Others

Thomas P. Joseph, J.—This revision is in challenge of the order dated 20.09.2012 on I.A. No. 4854 of 2010 in O.S. No. 2599 of 1992 of the II Additional Munsiff''s Court, Thiruvananthapuram. Petitioner who is the 6th defendant wanted the exparte decree in that case to be set aside and filed I.A. No. 4855 of 2010 for that purpose. Since there was a delay of 5359 days in filing the said application, he also filed I.A. No. 4854 of 2010 for condonation of the delay stating various reasons.

Learned Munsiff, by order dated 20.09.2012 dismissed I.A. No. 4854 of 2010 and refused to condone the delay. Consequently, the same day I.A. No. 4855 of 2010 was also dismissed. The order dated 20.09.2012 on I.A. No. 4854 of 2010 is under challenge in this civil revision.

The learned counsel has contended that the order dismissing I.A. No. 4854 of 2010 is revisable under Sec. 115 of the CPC (for short, "the Code"). It is also contended that since dismissal of I.A. No. 4855 of 2010 is merely consequent to the dismissal of I.A. No. 4854, once I.A. No. 4854 is allowed by allowing this civil revision, the trial court has to consider I.A. No. 4855 of 2010 on merit. Therefore, it is contended that this civil revision is maintainable.

It is conceded by the learned counsel that the learned Munsiff passed orders on I.A. Nos. 4854 and 4855 of 2010 on the same day. May be, dismissal of I.A. No. 4855 of 2010 without going into the merit of the contentions raised therein was due to the dismissal of I.A. No. 4854 of 2010. For whatever reason it be, the request made vide I.A. No. 4855 of 2010 to set aside the exparte decree is disallowed by an appealable order.

In such a situation, the remedy available to the petitioner is to challenge the dismissal of I.A. No. 4855 of 2010 by way of appeal under Order XLIII, Rule 1(d) of the CPC and challenge correctness of the order dismissing I.A. No. 4854 of 2010 in that appeal invoking Sec. 115 of the Code.

This Court in Lekshmikutty Panickathi Vs. Bhargavi Panickathi, has held that a rejection of an application under Order IX, Rule 9 of the Code for whatever reason it be, (may be for the reason of refusal to condone the delay) is appealable under Order XLIII, Rule 1(c) of the Code. That principle must apply to the rejection of an application under Rule 13 of Order IX of the Code as well. In Lilly Vs. Ragesh, it is held that except as may be in a case where a revision against an order refusing to condone the delay is pending and while so, a consequential order is passed on the application to set aside the exparte decree, where consequent to the refusal to condone the delay, the application under Rule 13 of Order IX of the Code is dismissed, remedy available to the aggrieved is to file appeal under Order XLIII, Rule 1(d) of the Code.

In the light of the above, the remedy available to the petitioner is to challenge correctness of the order on I.A. No. 4855 of 2010 in an appeal under Order XLIII, Rule 1(d) of the Code and I challenge correctness of the order on I.A. No. 4854 of 2010 in that appeal. In the view of the above legal position, this civil revision cannot be entertained.

The civil revision is therefore, dismissed.

All pending interlocutory applications will stand dismissed.