BALAN Vs. DEVAKI

JUDGEMENT

(1.) Maintainability of this writ petition is challenged by learned counsel for respondents on the ground that order refusing to set aside the ex parte decree is subject to a revision under Section 115of the Code of Civil Procedure (for short, "the Code") and hence writ petition under Article 227of the Constitution would not lie. Learned counsel for petitioner maintain that writ petition is maintainable as the order under challenge if passed in favour of petitioner would not have terminated the proceedings. Petitioner wanted the ex parte decree against him to be set aside and filed I.A. No. 1594 of 2007 in O.S. No. 75 of 2002 with an application to condone the delay. Learned Munsiff dismissed application to condone the delay and consequently the application to set aside the ex parte decree. Petitioner preferred CM. Appeal No. 23 and 24 of 2008 before learned Sub judge, Tirur. The said appeals were dismissed in confirmation of the order of learned Munsiff. Question is whether order of the learned Munsiff which has been confirmed by the learned Sub judge is amenable to a revision under Section 115of the Code or is subject to a writ petition under Article 227of the Constitution.

(2.) To understand the contention it is necessary to refer to Section 115of the Code. As per the said provision which stood before amendment by Amendment Act 46 of 1999 the proviso to Section 115stated that High Court shall not under that provision vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-