Shanmughadas vs Malayil Subramanian

V. Chitambaresh, J.—The payment of costs as a condition precedent for re-admitting an Appeal Suit dismissed for default is impugned in this Original Petition under Art. 227 of the Constitution of India. The lower Appellate Court has imposed a costs of Rs. 10,000/- to be paid by the appellant to the contesting respondent therein which is challenged as illegal and unjustified. It is evident therefore that the appellant is not willing to pay the costs as directed in view of his unequivocal stand and necessarily the consequences have to follow. The result is that the application to re-admit the Appeal Suit dismissed for default filed under O. XLI R. 19 of the Code of Civil Procedure, 1908 (''the CPC'' for short) would be dismissed.

An order refusing to re-admit the Appeal Suit dismissed for default is appealable under O. XLIII R. 1(t) of the C.P.C. wherein only the liability to pay costs could be challenged. It will be inequitable to entertain this Original Petition filed invoking the supervisory jurisdiction when obviously there exists an alternate appellate remedy. An order to pay costs as a condition to allow an application under O. IX R. 13 of the C.P.C. for setting aside the ex parte decree has been held to be "appealable under O. XLIII R. 1(d) of the C.P.C. Thus a defaulter who is not willing to comply with the conditional order has to invoke the appellate remedy wherein the discretion exercised in fixing the quantum of costs could very well be questioned.

The Original Petition is rejected in limine.