JOHN Vs. MAMMUKUTTY

JUDGEMENT

(1.) THE learned advocate appearing for the respondent plaintiff contended that in view of the fact that an appeal, C. M. A. No. 202 of 1982, has been filed and the same is pending, this revision is not maintainable as the question raised in this revision can be raised in the appeal.

(2.) THERE is considerable force in the argument advanced on behalf of the respondent-plaintiff. In the light of the decision reported in Kunhiraman v. Rassy (1979 klt. 718) the proper remedy in the circumstances of this case to the revision petitioner is to file an appeal. This decision applies on all fours to the facts of the present case. In Kunhiraman v. Rossy , my learned brother, Viswanatha Iyer , J. held that when a petition to excuse delay was dismissed and the appeal was also dismissed on the ground that it was time barred, the remedy of the person aggrieved was to file an appeal against the decree, if that was allowed by law, and take a ground in the appeal that the lower court was wrong in not excusing the delay in filing the appeal. After the amendment of Order XLIII by introducing R. 1a this position has been made clear. R. 1a of Order XLIII reads: "right to challenge non- appealable orders in appeal against decrees (1) where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should or should not, have been recorded. "