IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WP(C).No. 37791 of 2008(Y) --------------------------------------- CMA.79/2007 OF DISTRICT & SESSIONS COURT,TRIVANDRUM, OS.1570/1999 OF III ADDL.MUNSIFF COURT,TRIVANDRUM. .................... PETITIONER: ------------------- RITA ALOYSIOUS MIRANDA, D/O.MABLE, BLUE LAGOON, PATTATHANAM P.O., PATTATHANAM NAGAR, KOLLAM, NOW RESIDING AT HEARTS, CHANNANKARA PO., VETTUTHURA, THIRUVANANTHAPURAM. BY ADVS. MR.M.R.ANANDAKUTTAN, SMT.M.HEMALATHA, MR.R.S.MADHU, MR.MAHESH ANANDAKUTTAN. RESPONDENT: ---------------------- LALKUMAR, S/O.GANGADHARAN NAIR, CHITTATUKONATHU VEEDU, CHERUVAKKAL VILLAGE, SREEKARIYAM P.O., THIRUVANANTHAPURAM, AND WORKING AT HINDUSTAN LATEX, SECTION MARKETING POOJAPPURA, THIRUVANANTHAPURAM. BY ADVS. MR.PIRAPPANCODE V.SREEDHARAN NAIR, MR.PIRAPPANCODE V.S.SUDHIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37791/2008-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE I.A. NOS. 6318/04. EXT.P.2: COPY OF THE I.A.NO.6319/04. EXT.P.3: COPY OF THE ORDER DTD. 14/08/06. EXT.P.4: COPY OF THE ORDER IN C.M.A. NO. 79/2007 DTD. 21/08/08. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.37791 OF 2008 () ----------------------------------- Dated this the 8th day of February, 2010 J U D G M E N T Petitioner is the 2nd defendant in O.S.No.1570 of 1999 on the file of the IIIrd Additional Munsiff Court, Thrivuanahthapuram. The above suit was one for money in which an ex parte decree was passed against the petitioner and her brother, co-defendant. Admittedly, in execution of the decree, a property belonging to the petitioner, having an extent of 36 cents, had been brought to sale and delivered over to the decree holder. Delivery was effected on 8.3.2004 pursuant to issue of the sale certificate in favour of the decree holder. After such delivery, in fact nearly four months later, petitioner moved an application for setting aside the ex parte decree with a petition to condone delay of 1695 days. The application was resisted by the decree holder/respondent. The learned Munsiff, not being satisfied with the cause canvassed by the petitioner, dismissed the delay petition filed to condone WPC.37791/08 2 delay, with the result, the application for setting aside the ex parte decree too was rejected. Challenge against the orders of the learned Munsiff by way of an appeal was also negatived by the learned District Judge vide Ext.P4 judgment. Propriety and correctness of the orders/judgments passed by the two inferior courts concurrently holding that the petitioner has not made out sufficient cause for condoning the inordinate delay in moving the application for setting aside the ex parte decree is assailed in the writ petition invoking the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The learned counsel for the petitioner submitted that summons was not duly served on the petitioner, and so much so, there was no delay at all. At the time of institution of the suit, she was residing at the residence of her husband and summons in the case was served in the address of her family house, is the submission of the counsel. Whatever be the merit of the submissions made by the counsel, it is seen, the petitioner has WPC.37791/08 3 moved an application to condone the delay of 1695 days to set aside the ex parte decree. If it was a case of non-service of summons, delay has to be reckoned for the purpose of an application under Order IX Rule 13 of the Code of Civil Procedure from the date of knowledge of the ex parte decree and not when she was declared ex parte. Petitioner, by seeking a condonation of delay, it appears, practically conceded that the delay from the date on which she was declared ex parte in the suit by orders of the court is necessary and essential for setting aside the ex parte decree. From the orders passed by two inferior courts, I find the petitioner has not canvassed a case with reference to from which date she got knowledge of the ex parte decee, and so much so, any dilation on that aspect is not called for in the present writ petition. What is noticed is that during the pendency of the execution proceedings when the immovable property belonging to the petitioner was attached to proceed against for realisation of the decree debt, a third party moved a claim petition contending that the petitioner had executed an agreement of sale after received sale consideration thereof, WPC.37791/08 4 and so much so, the attachment over the property was liable to be lifted. In that proceedings, admittedly, the petitioner and also her brother co-defendant in the suit were parties apart from the decree holder/respondent. Notices issued to the defendants were unserved. Petitioner and her brother admittedly were treated as ex parte in that proceedings. In the enquiry on the application moved by the petitioner to set aside the ex parte decree, she had mounted the box and got herself examined as PW1. When she was confronted with the registered agreement of sale produced by the claimant, she had denied the signature on that document purported to have been subscribed by her. The fact that the claim petition was dismissed and that the petitioner had remained ex parte in that proceedings as well with reference to the other material circumstances presented in the case, persuaded the learned Munsiff to hold that the cause pleaded by the petitioner for condoning the delay to set aside the ex parte decree is meritless. Needless to point out, the trial Judge is the best Judge to decide a disputed question of fact especially in cases where exercise of discretion is called for. He alone had the WPC.37791/08 5 opportunity to watch the demeanor and deportment of the witnesses to assess the merit of the sworn testimony given before the court. Conclusion formed by the learned Munsiff, it was approved by the learned District Judge after re-appreciating the materials involved. When that be so, in exercise of the visitorial jurisdiction, I find it is not proper and appropriate for this Court to take a different view even if such a view is permissible as the extraordinary jurisdiction can be invoked only when there is jurisdictional infirmity in the orders of the inferior courts. There is no impropriety or illegality in the orders passed by the court below. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp