IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 FAO.No. 248 of 2010() --------------------- AGAINST THE ORDER DATED 09/04/2010 IN IA.1571/2009 & 1572/2009 IN OS.352/2001 OF SUB COURT, MAVELIKKARA .................... APPELLANT/PETITIONER/DEFENDANT: --------------------------------------------------------- GEE VARGHEESE, S/O.DANIEL RESIDING AT PUTHENVEETTIL PADEETTATHIL, KALIMAKKAL,KOMALLUR PO MAVELIKKARA, ALAPPUZHA DISTRICT REPRESENTED BY THE POWER OF ATTORNEY SHALI VARGHEESE, RESIDING AT KOICKAL HOUSE, KANNAMANGALAM SOUTH, CHETTIKULANGARA VILLAGE, MAVELIKKARA. BY ADV. SRI.R.RAJASEKHARAN PILLAI RESPONDENT/COUNTER PETITIONER/PLAINTIFF: ---------------------------------------------------------------------- V.R.JOY, S/O.RAPPAI, RESIDING AT VALIYAVEETTIL HOUSE, MOUNT ZION ROAD, CHERACHI P.O., OLLUR, THRISSUR DISTRICT. ADV. SMT.S.L.SYLAJA THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.248 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of November, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal is filed against an order by which the court below dismissed an application to set aside an ex parte decree, also refusing to condone delay of 2490 days in filing that application. 2.The matter arises from a suit for recovery of money. It appears that summons was taken out for personal service and also by paper publication in Kerala Kaumudi newspaper. The suit was ultimately decreed ex parte. 3.The impugned order is issued also by rejecting a request of the defendant to lift an order of FAO248/10 -: 2 :- attachment on an item of property. In fact, the defendant had offered a fixed deposit by way of security for the purpose of lifting the attachment. In so far as the impugned order refusing relief in relation to the attachment is concerned, this Court has already interfered with the matter by judgment dated 9th September, 2010 in WP(C).No.26363/2010 whereby it has been ordered as follows: “i. Ext.P4, common order to the extent it concerned dismissal of I.A.No.1574 of 2009 in O.S.No.352 of 2001 of the court of learned Sub judge, Mavelikkara is set aside. ii. I.A.No.1574 of 2001 is allowed and the attachment over immovable property of petitioner and his wife effected in the suit is lifted subject to the following conditions: (a) Petitioner shall produce bank guarantee for the sum of Rs.3,50,000/- (Rupees three lakhs and fifty thousand only) in the court below. FAO248/10 -: 3 :- (b) Petitioner shall also furnish security in the form of landed property to the satisfaction of the learned Sub Judge for another sum of Rs.2,00,000/-(Rupees Two lakhs only). (c) On learned Sub Judge being satisfied of sufficiency of the security as above stated, attachment will stand lifted and thereon learned Sub Judge shall communicate the matter to the office of Sub Registrar concerned.” 4.In so far as the application to condone the delay and also the application to set aside the ex parte decree are concerned, we find that the ground urged was that the defendant was abroad and was unaware of the notice since his name was shown in the cause title showing him as residing in his wife's residence, however that his permanent residence is not that of his wife. The fact of the matter remains that it was the wife who, even going by the defendant's case, found FAO248/10 -: 4 :- out that the property was attached. In fact, she holds out the power of attorney of the defendant and filed the petition to set aside the ex parte decree and also the petition for condonation of delay in applying to set aside the ex parte decree. Therefore, the fact whether it is the wife's residence or his ancestral home makes really no difference. 5.Having regard to the conditions imposed by this Court in the judgment in WP(C).26363/2010 and taking into account the totality of the facts and circumstances, we deem it appropriate to give the defendant an opportunity to contest the matter, however on further terms. In the result, this appeal is allowed vacating the impugned order to the extent it relates to I.A.1571/2009 and I.A.1572/2009. We accordingly allow those interlocutory applications. All these will be on condition that the defendant, in addition to the conditions imposed by this Court FAO248/10 -: 5 :- in the judgment in WP(C).26363/2010, would pay the plaintiff all costs incurred before the court below, including expenditure for publication of notice in the newspaper until now and a further amount of Rs.5,000/- as cost of this appeal, be payable through the counsel appearing for the respondent before this Court. All such amounts shall be paid within 45 days from now, without fail. In the event of any default in paying the amounts as aforesaid, this appeal will stand dismissed and necessary consequences will follow. The parties are directed to appear before the court below on 8.12.2010. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- P.Bhavadasan, Judge. Sha/0412 Certified that the appellant has paid Rs.5,000/- (Rupees five thousand only) as cost to the counsel for the respondent in compliance of the direction contained in the judgment dated 08/11/2010 in F.A.O.248/2010 vide memo c.f.7685/2010. Sd/-Registrar(Judicial)