GANGADHARAN Vs. GOPI

JUDGEMENT

(1.) THIS petition filed under Art.227 of Constitution of India is not numbered by the registry. At the instance of the petitioner, is sent to the court. The objection raised by the registry is that the order challenged is one passed under O.XXXIX Rr.1 and 2 of Code of Civil Procedure, which is appealable as provided under O.XLIII R.1(r) of Code of Civil Procedure.

(2.) LEARNED counsel appearing for petitioner, relying on the decision of a learned Single Judge of this court in Viswambharan v. Damodaran Nair (1988 (2) KLT 32), argued that the said case was identical, where an appeal filed before District Court was returned as not maintainable on The ground that the order challenged in the appeal was passed by District Judge in his capacity as vacation Judge and this court, finding that District Judge is incompetent to pass a final order in his capacity as Vacation judge, treated the final order as nonest and entertained the appeal as a revision under S.115 of Code of Civil Procedure. The argument of the learned counsel is that the same principle is to be applied in this case and though an appeal will lie against the final order passed in a petition filed under O. XXXIX Rr. 1 and 2, when the District Judge is Incompetent to pass a final order, there is no final order as the order is to be treated as honest in which case, petitioner is entitled to file a petition or challenge it under Art.227 of Constitution of India, in view of the proviso to S.115 of Code of Civil Procedure.

(3.) FOLLOWING the earlier decision in Ramankutty V. Ayissakunhi (1987 (2) KLT 895), it was held that any other order beyond the provisional order is without jurisdiction and illegal because of the jurisdictional impairment on account of the circumspection to the powers. It was found that as the final order is to be treated as nonest and S.115 of Code of Civil Procedure then stood, it can be treated as a revision. Thus the order was set aside and Munsiff was directed to pass final order. It is submitted by the learned counsel appearing for 5th defendant that some of the other defendants have filed appeal against the order and appeal is pending before Additional District Court, North Paravur and maintainability of that appeal itself is challenged by the respondents/plaintiffs.