The petitioners herein are the appellants in the unnumbered CMA filed before the District Court, Kollam, challenging the common order passed in I.A.Nos.190/10 and 191/10 in O.S.No.210/02 on the files of the Court of Addl. Sub Judge, Kollam. I.A.No.191/10 was filed under Section 151 of the Code of Civil Procedure to condone the delay in filing the application to set aside the ex parte decree and I.A.No.191/10 was filed under Order IX Rule 13 and Section 151 of the CPC to set aside the ex parte decree. When it was noticed that a single appeal will not lie from the orders passed in two interlocutory applications, the office returned the unnumbered CMA to the appellants for curing the defects; but, instead of doing that, the appellants/petitioners re-presented the appeal stating that they are entitled to file a single appeal in view of the decisions rendered by the High Court. After hearing the petitioners, the court below again returned the appeal memorandum for re-presenting the same after curing the defects on a finding that a single appeal is not maintainable against two orders appealed against and an appeal will not lie from an order refusing to condone the delay; and hence the appeal is not maintainable.
2. The learned counsel for the petitioners cited Kunhiraman Vs. Rossy (1979 KHC 334) and drew my attention to paragraph 2, wherein this Court held that, “When a petition to excuse the delay in filing an appeal or an application to set aside the ex parte decree is dismissed and the consequent decision of the latter appeal or application is appealable, the proper remedy is to appeal and take a ground regarding the incorrectness of the order on the delay petition. On facts the order can be challenged.”
The learned counsel further submits that the above decision was followed in John Vs. Mammukutty (1983 KLT 1115).
3. Going by the above decisions, it could be seen that the proper remedy is to file a single appeal challenging the order dismissing the application to set aside the ex parte decree and make the incorrectness or illegality in the order dismissing the application to condone delay also as a ground in that appeal. Going by the impugned order, it could be seen that, though a single appeal is filed, in the cause title both I.A.Nos. are seen mentioned. I am of the opinion that the view taken by the learned District Judge is hyper technical. In fact, the challenge was against the order dismissing the application to set aside the ex parte decree. But, with abundant caution the petitioners have shown the number of the application to set aside the order dismissing the petition to condone delay also in the cause title. Finding defect for the same is highly technical. When substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred rather than technical considerations. In the above view, I find that the CMA can be taken on the files and numbered. The court below is further directed to dispose the CMA at the earliest, at any rate, within a period of four months from today. If the petitioners had taken back the file, the same shall be re-presented within a period of one month from the date of receipt of a copy of this judgment.
This Original Petition is disposed of as above.
Sd/-
(K.HARILAL, JUDGE) okb.