MALAYIL SHANMUGHADAS Vs. THIYYATH SAVITHRI

JUDGEMENT

(1.) THE plaintiff in O.S.No.805 of 2003 of the Additional Munsiff's Court, Kozhikode-II, aggrieved by Ext.P3, order dated 17.07.2012 on I.A.No.1276 of 2012 has filed this original petition.

(2.) PETITIONER filed O.S.No.805 of 2003 for a decree for prohibitory injunction. The 4th respondent filed a counter claim. The suit was dismissed for default and the counter claim was decreed in part. The suit was later restored to file but nothing was done with respect to the exparte decree on the counter claim. Later the suit was dismissed on merit. That dismissal was challenged in A.S.No.46 of 2008 pending in the Sub Court, Kozhikode. It is only then that the petitioner noticed that the decree on the counter claim though in part, remains. Thereon he filed I.A.Nos.4915 and 4916 of 2010 to set aside the exparte decree on the counter claim and to condone the delay. The application to condone the delay was dismissed as per Ext.P1, order dated 15.02.2012. Consequently, the application to set aside the exparte decree also was dismissed. Later, the petitioner filed I.A.No.1276 of 2012 to review Ext.P1, order. That application was dismissed by the learned Munsiff as per Ext.P3, order. Ext.P3, order is under challenge.

(3.) I am now concerned with the correctness of Ext.P3, order. I have gone through the order and find that there was no sufficient reason to review Ext.P1, order and the consequent dismissal of the application to set aside the exparte decree on the counter claim. The appropriate remedy available to the petitioner was to challenge the dismissal of the application to set aside the exparte decree on the counter claim in appeal and in that appeal challenge correctness of the order dismissing the application to condone the delay (see Lakshmikutty Panickathi v. Bhargavi Panickathi -1987 (2) KLT 562 and Lilly v. Ragesh -2004 (3) KLT 712). In fact the learned Munsiff has also observed so in Ext.P3.