THATCHARAKKAL SUDHEER KUMAR AND PATHUMMAYI Vs. PARAMBIL MOOSAKOYA,

JUDGEMENT

(1.) This petition is in challenge of Exts.P6 to P8, orders whereby order of dismissal of Exts.P3 to P5, applications on 16-12-2008 was reviewed and those applications were allowed. Petitioner sued respondent Nos. 1 and 2 for a decree for prohibitory injunction to restrain them from blocking plaint B schedule way. Alleging that after institution of the suit there was obstruction caused to plaint B schedule, plaint was amended to incorporate a prayer for mandatory injunction. Later, there was Ext.P1, ex parte decree against respondent Nos. 1 and 2 on 30-09-2002. Respondent No. 2 filed application to set aside the ex parte after a delay of 430 days. That application was allowed against which petitioner filed writ petition to this Court. As per Ext.P2, judgment the order was set aside and the matter was remitted to the trial court for fresh consideration. While so, respondent No. 1 sold the property through which B schedule way passes to respondent No. 3 and he, in turn filed Exts.P3 to P5, applications to implead him as supplemental defendant No. 3, set aside the ex parte decree and condone the delay of 5 years, 9 months and 25 days. Those applications were dismissed by the learned Munsiff on 16-12-2008. Later, relying on the decisions of the Supreme Court in Rajkumar v. Sardari Lal and Ors. 2004 SCW 470 that an assignee of the defendant pendente lite can seek the ex parte decree to be set aside, learned Munsiff reviewed dismissal of Exts.P3 to P5 as per Exts.P6 to P8, orders on October 9, 2009. Those orders are under challenge. It is contended by learned Counsel for petitioner/plaintiff that no sufficient reason is stated for review and to allow Exts.P3 to P5, applications except that assignee of the defendant pendente lite is entitled to file such applications. Learned Counsel for respondent No. 3 points out that the writ petition is not maintainable since statutory remedy by way of appeal against Exts.P6 to P8, orders is available under Order XLIII Rule 1() of the Code of Civil Procedure (for short, "the Code"). In response, it is contended by learned Counsel for petitioner that an illegality is committed by the court below and hence the orders are amenable to the supervisory jurisdiction of this Court under Article 227 of the Constitution.

(2.) It has been time and again held that when a statutory remedy is available, this Court is not required to interfere in exercise of its supervisory power. No doubt, even when a statutory remedy is available there is no bar in this Court exercising supervisory power but, normally when a statutory remedy is available to the party, he has to take recourse to that remedy. An order granting an application for review under Order XLVII Rule 4 of the Code is appealable under Order XLIII, Rule 1(w) of that Code. If that be so, proper course available to the petitioner is to challenge Exts.P6 to P8 orders in appeal. There is no reason why this Court should exercise its supervisory jurisdiction when that statutory remedy is available to the petitioner. Hence without prejudice to the right of petitioner if any to challenge the impugned orders by way of appeal this writ petition is closed. In case any such appeal is preferred it will be open to the petitioner to seek exclusion/condonation of that period during which this proceeding was pending in this Court, as provided under law.