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KADEEJA v. N.CHANDRASEKHARAN NAIR - WP(C) No. 21343 of 2006(N)  RD-KL 2531 (5 December 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 21343 of 2006(N)
1. N.CHANDRASEKHARAN NAIR,
2. MAMMI, AGED 52 YEARS,
3. MARIYA UMMA, AGED 55 YEARS,
For Petitioner :SRI.JACOB SEBASTIAN
For Respondent :SRI.E.R.VENKATESWARAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR, J.W.P.C.NO.21343 OF 2006 (N)
Dated this the 5 th day of December, 2006.
Petitioner is first defendant and first respondent the plaintiff in O.S. 98/1998 on the file of Sub Court, Ottappalam. First respondent filed the suit seeking a decree for specific performance of agreement for sale. The suit was decreed ex-parte. Petitioner filed an application under Order IX Rule 13 of Code of Civil Procedure to set aside the ex-parte decree and another application to condone the delay of 177 days in filing the petition under Section 5 of Limitation Act. Learned sub Judge dismissed both the applications. This petition is filed under Article 227 of constitution of India challenging the order in I.A.1843/05, the application to condone delay. As against the order dismissing the application under Order IX Rule 13, petitioner has already filed an appeal. When the office of the appellate court raised objection that without challenging the order in the delay condonation application, appeal against the dismissal of application under Order IX rule 13 alone cannot be maintained, petitioner also filed an appeal against the order in I.A.1843/05 before the District Court. The appeals are pending. According to petitioner as appeals were filed with an application to condone delay no order of stay of execution could be obtained and therefore this court has to grant an order of stay. Learned counsel also argued that as no appeal W.P.C.NO.21343 OF 2006 (N) 2 will lie against an order in this petition filed under Section 5 of the Limitation Act, this petition is maintainable.
2. Learned counsel appearing for respondent submitted that decree was originally set aside by the District Court, even though his application to set aside the ex-parte decree was dismissed by the trial court and again suit was decreed ex-parte and the application to set aside ex-parte decree was filed with considerable delay and trial court found that there was no sufficient cause for considering the delay or to set aside the decree and challenging th orders were filed belatedly and this court may not exercise the extra ordinary jurisdiction to grant an order of stay.
3. The application under Order IX Rule 13 of code of civil procedure was dismissed for the reason that I.A.1843/05, application to condone delay was dismissed. Challenging the orders, appeals were filed and they are pending before District Court. Therefore it is for the District Court to consider whether there is sufficient cause to condone the delay in filing the application under Order IX Rule 13 and if this was sufficient cause whether there was further sufficient cause for the absence of petitioner to set aside the ex-parte decree. By exercising the extra ordinary jurisdiction of this court, the order in I.A.1843/05 cannot be interfered. That order has to be challenged along with the order dismissing the application under Rule 13 of Order IX. W.P.C.NO.21343 OF 2006 (N) 3 Therefore on that ground alone, the petition is to be dismissed. As it is submitted that the appeals are not admitted and the application for condoning the delay in filing an appeal are still pending, District Court, Palakkad, is directed to dispose I.A962/06 and I.A. 963/06 in the unnumbered C.M.A as expeditiously as possible and in any event within 15 days from the date of receipt of this judgment. First respondent is entitled to file an objection to that application, if he has not so far filed an objection. Though learned counsel appearing for petitioner sought for an order of stay contending that this court granted an order of stay on 14.8.06, the order of stay had expired on 14.9.06. Since then there was no order of stay. Petitioner is entitled to approach the District Court for getting order of stay. M.SASIDHARAN NAMBIAR,
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