This second appeal challenging the dismissal of a first appeal for default was held not entertainable, as such dismissal is governed by Order XLI Rule 19 CPC and is not subject to second appeal.
Appeal dismissed; both parties directed to suffer respective costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN
THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932
SA.No. 793 of 1997(C)
--------------------AS.238/1989 of ADDL.DISTRICT COURT, THRISSUR OS.377/1985 of MUNSIFF COURT,CHAVAKKAD
APPELLANT(S)/APPELLANT/DEFENDANT:
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GOPALAN,THATTAPPARAMBATH HOUSE, VADANAPPILLY AMSOM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.
BY ADV. SRI.K.K.MOHAMED RAVUF
SRI.K.SAJAN VARGHESE
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
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KUNHAYYAPPAKUTTY S/O.CHALIPPATTU HOUSE, VADANAPPILLY AMSOM DESOM, P.O., THRITHALLUR, TRICHUR DISTRICT.
ADV. SRI.S.ANANTHAKRISHNAN
SRI N K SUBRAMANIAM
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
S.S.SATHEESACHANDRAN, J.
S.A.NO.793 OF 1997
Dated this the 23rd day of September, 2010
J U D G M E N T
The defendant is the appellant. Suit was one for recovery of possession, which was decreed in favour of the plaintiff by the trial court. The defendant preferred an appeal before the lower appellate court challenging the decree. The appeal was dismissed for default. The present second appeal is seen filed against the dismissal of such appeal for default by the court below.
S.A.NO.793/97
2
disposal on merits. That application for restoration being dismissed by that court, it is submitted, an appeal was preferred before this Court as C.M.A.No.220 of 1997. That appeal was also dismissed confirming the order of the lower appellate court, dismissing the first appeal of the appellant for default. Though the order dismissing for default the first appeal of the appellant is styled as a judgment and a decree has followed such judgment, it is essentially an order passed under Order XLI Rule 19 of the CPC, from which, no second appeal will lie. In the case of an ex parte decree, it is open to the defendant to seek for setting aside that decree under Order IX Rule 13 of the CPC or to move an appeal against the decree as such if he has justifiable ground to do so, to challenge the merit of that decree in appeal. But so far as an order dismissing the appeal for default under Order XLI Rule 19 of the CPC, the remedy of the appellant is either to seek for restoration or to challenge such order, if it suffers from jurisdictional infirmity, under Section 115 of the CPC, or under Section 227 of the Constitution of India invoking the supervisory jurisdiction of this Court, provided, there is sustainable ground
S.A.NO.793/97
3
to do so. The second appeal preferred against such order is found to be not entertainable. The learned counsel for the respondent has also brought to my notice that pending his appeal, in execution of the decree, recovery of the property had already been effected. Perhaps that may be reason that there is no representation from the side of the appellant for the last few postings. The appeal having found not entertainable, it is dismissed directing both sides to suffer their respective costs.
S.S.SATHEESACHANDRAN JUDGE
prp
S.S.SATHEESACHANDRAN, J.
S.A.NO.793 OF 1997
J U D G M E N T
23rd day of September, 2010
S.A.NO.793/97 5
2 issues framed by the court
Whether a second appeal lies against an order dismissing an appeal for default under Order XLI Rule 19 CPC
Whether the remedy against such dismissal is restoration or a review
4 provisions across 4 enactments
Gopalani
Kunhayyappakutty
S.S. Sathiesachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
S.S. Sathiesachandran
Parties & counsel
