A subsequent restoration application under Order 9 Rule 9 is not maintainable if proper remedies prescribed by the Code of Civil Procedure are not pursued.

J UDGMENT

Joseph Francis J., This appeal is filed by the petitioners in I.A. No.1339 of 2011 in O.P. No.192 of 2010 on the file of Family Court, Kottayam at Ettumanoor. The respondent herein was the respondent in that I.A., which was filed by the petitioners under Order 9 Rule 9 of Code of Civil Procedure to restore I.A. Nos.54 of 2011 and 55 of 2011, which were dismissed for default on 18.1.2011.

2. The case of the appellants is briefly as follows. The first appellant is the son and the 2nd appellant is his father. The respondent is wife of the 1st appellant. The marriage between the first appellant and the respondent was solemnised on 18.8.2008 as per Christian rituals. According to the respondent there was repeated harrasment and ill treatment from the first appellant and his parents and as a result, the respondent is staying with her parents since 9.10.2008. The respondent filed O.P. No.192 of 2010 impleading the appellants as respondents and sought to pass a decree for return of her money and gold ornaments, which was decreed ex-parte on 19.6.2010. The appellants filed I.A. Nos.54 of 2011 and 55 of 2011 to set aside ex-parte decree and to condone delay in filing the petition to set aside the ex-parte decree. Those petitions were dismissed for default. The appellants allege that if ex-parte decree is not set aside, irreparable injury and hardship will be caused to them. Hence they filed I.A. No.1339 of 2011 to restore those I.A.s. The respondent filed a detailed counter stating that there is no bonafides in filing the petition. The Family Court on considering the matter dismissed I.A. No.1339 of 2011 on finding that it was filed without any bonafides. Against that order the petitioners/respondents filed this Appeal.

3. Heard learned counsel for the appellants and learned counsel for the respondent.

4. Learned counsel for the appellants submitted that I.A.

No.1339 of 2011 is not barred by limitation as it is governed by Article 137 of the Limitation Act and as such, no delay condonation petition is required. Learned counsel for the appellants submitted that the appellants could not appear before the Family Court due to cardiac problems and frequent treatment of the 2nd appellant and also due to the nature of the job of the first appellant. Learned counsel for the respondent supported the order under challenge.

5. Annexure A1 is the copy of the judgment in O.P. No.192 of 2010 on the file of the Family Court, Kottayam at Ettumanoor dated 19.6.2010, which shows that the respondents in that O.P. were set aside ex-parte and that O.P. was decreed ex-parte against the respondents. Respondents in O.P. No.192 of 2010 filed I.A. No.54 of 2011 under Order 9 Rule 13 of Code of Civil Procedure to set aside ex-parte decree and also filed I.A. No.55 of 2011 under Section 5 of the Limitation Act to condone delay of 175 days in filing petition to set aside ex-parte decree. There is no dispute that those I.As were dismissed for default on 18.1.2011. The respondents in the O.P. filed I.A. No.643 of 2011 in I.A. No.54 of 2011 in O. P. No.192 of 2010 under Order 9 Rule 9 of to restore I.A Nos.54 of 2011 and 55 of 2011. The respondents also filed I.A. No.644 of 2011 in I.A. No.54 of 2011 in O.P. No.192 of 2010 under Section 5 of the to condone delay of 13 days in filing I.A. No.643 of 2011. Those petitions were also dismissed for default on 4.3.2011. The respondents in the O.P. have not filed any restoration petition to restore I.A. No.643 of 2011 and I.A. No.644 of 2011. Instead they filed I.A. No.1339 of 2011 under Order 9 Rule 9 of the to restore I.A. Nos.54 of 2011 and 55 of 2011. Since the proper remedy available to the respondents in the O.P. is to file restoration petition under Order 9 Rule 9 read with Section 141 of the to restore I.A. Nos.643 of 2011 and 644 of 2011 or an appeal under Order 43 Rule 1(d) of the and a second application to restore I.A. Nos.54 of 2011 and 55 of 2011 is not maintainable in law. Therefore the learne