Padmini vs Kunjumon
2023 Latest Caselaw 6179 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 MONDAY, THE 12TH DAY OF JUNE 2023 / 22ND JYAISHTA, 1945
                   F.A.O. NO. 40 OF 2020
AGAINST THE ORDER DATED 30.08.2019 IN I.A.NO.3610 OF 2018
 IN O.S.NO.716 OF 2012 ON THE FILE OF ADDITIONAL MUNSIFF
                     COURT, ALAPPUZHA
APPELLANT/PETITIONER/DEFENDANT:

          PADMINI,
          AGED 69 YEARS
          W/O.LATE GANGADHARAN, KUNNINAKATHU,
          MANNANCHERRY P.O., ALAPPUZHA.
          BY ADVS.
          PHILIP T.VARGHESE
          SRI.THOMAS T.VARGHESE
          SMT.ACHU SUBHA ABRAHAM
          SMT.V.T.LITHA
          SMT.K.R.MONISHA
          SMT.SHRUTHI SARA JACOB
          SHRI.ANTONY SAVIO


RESPONDENTS/RESPONDENTS/LRS.OF PLAINTIFFS:

    1     KUNJUMON,
          AGED 64 YEARS
          S/O.AMMINI AMMA, KUNNINAKAM COLONY,
          MANNACHERRY P.O., ALAPPUZHA, PIN-688 538.
    2     MANIKUTTAN,
          AGED 60 YEARS
          S/O.AMMINI AMMA, KUNNINAKAM COLONY,
          MANNACHERRY P.O., ALAPPUZHA, PIN-688 538.
                                     2
F.A.O.No.40 of 2020




     3      MOLAMMA,
            AGED 62 YEARS
            D/O.AMMINI AMMA, KUNNINAKAM COLONY,
            MANNACHERRY P.O., ALAPPUZHA, PIN-688 538.
            BY ADVS.
            K.S.HARIHARAPUTHRAN
            PINKU MARIAM JOSE



         THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION     ON      12.06.2023,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                 3
F.A.O.No.40 of 2020


                           JUDGMENT

P.G. Ajithkumar, J.

This is an appeal filed under Section 104 read with

Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908.

The order dated 30.08.2009 of the Additional Munsiff,

Alappuzha dismissing I.A.No.3610 of 2018 in O.S.No.716 of

2012 is under challenge. That was an application filed under

Order IX Rule 13 of the Code.

2. There was a delay of 57 days in filing this appeal.

The appellant filed C.M.Appl.No.1 of 2020 seeking to

condone the said delay.

3. Section 104 of the Code makes certain orders

appealable. As per the provisions of Section 104 of the

Code orders enumerated in Order XLIII Rule 1 of the Code

also are appealable. One of such appealable orders is an

order rejecting an application under Rule 13 of Order IX of

the Code.

4. Section 13 of the Kerala Civil Courts Act, 1957

postulates to which court appeals shall ordinarily lie.

Section 13 (1) says that appeals from the decrees and

F.A.O.No.40 of 2020

orders of a Munsiff's Court shall, when such appeals are

allowed by law, lie to the District Court. Therefore an appeal

against order of a Munsiff rejecting an application under

Rule 13 of Order IX of the Code, which is appealable under

Order XLIII Rule 1(d), shall lie to the District Court.

Needless to say that in the light of the provisions of Section

15 of the Code, every suit shall be instituted in the Court of

the lowest grade competent to try it and the said provision

applies to appeals as well. Therefore this appeal ought to

have been filed before the District Court. Since this appeal

is filed in the wrong Court, the appellant is liable to be

directed to present the appeal before the District Court,

Alappuzha.

5. With that observation, this appeal is dismissed as

not maintainable.

6. Registry is directed to issue to the appellant a

certified copy of the appeal memorandum and the order

under appeal in original after retaining a certified copy of it

with the records of this appeal. Dates of presentation and

return of this appeal shall be mentioned in the copy of the

F.A.O.No.40 of 2020

appeal memorandum.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr