JAYAKUMARI Vs. ISMAIL RAWTHER

JUDGEMENT

(1.) This CRP is filed challenging the common order dated 11.8.2000 in LA. Nos. 1951 & 1957/1999 in O.S. No. 90/98 on the file of the Subordinate Judge's Court, Mavelikkara.

(2.) The revision petitioners- J. defendants in the above suit filed I.A. 1951/99 to c?t aside the ex parte decree passed against them on 20.8.99 under Order 9 Rule 13 C.P.C. and I.A. 1957/99 to condone the delay of 66 days in preferring the application to set aside the ex parte decree under Section 5 of the Limitation Act. The lower court found no ground to condone the delay in filing the application to set aside the ex parte 'decree and accordingly dismissed both the applications. Hence the defendants have preferred this revision before this Court challenging the common order in both the I.As.

(3.) The counsel for the respondent vehemently contended that the remedy available to the revision petitioners-defendants is to file an appeal against the order dismissing the application to set aside the ex parte decree taking a ground in the appeal regarding the incorrectness of the order passed by the trial court in the application to condone the delay in preferring the petition to set aside the ex parte decree. In support of this contention the counsel for the respondent, relied upon the decision of this Court in Kunhiraman v. Rossy, wherein this Court has held that in cases where petition to condone the delay in filing the appeal is dismissed and the a also dismissed on the ground that it is barred by limitation, proper remedy is to file an appeal against the decree, if it is allowed under law and to take the ground in the appeal that the lower court was wrong in not excusing the delay in filing the appeal. But after considering the various judgments of tnis Court as well as the various High Courts I am unable to subscribe to the above view expressed by the Single Judge of this Court.