IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 RFA.No. 459 of 2011 ------------------------------------ OS.481/2004 of PRL.SUB COURT,THRISSUR .................... APPELLANT (S): DEFENDANT: -------------------------------------------- K.A.KHALID, S/O.KARIMBIN PUNATHIL ABOOBACKER, KARIMBIN PUNATHIL HOUSE, VATAKARA AMSOM, VATAKARA TALUK, PIN-673 101. BY ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.ZUBAIR PULIKOOL SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN. RESPONDENT(S): PLAINTIFF : ------------------------------------------ K.B.VINAYAKUMAR, S/O.KARANAYIL BALAN, KARANAYIL HOUSE, KARUVANNUR VILLAGE, ETTUMUNA DESOM, THRISSUR. PIN-680001. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ORDERS ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- R.F.A.No.459 of 2011 & C.M.Appln.No.885 of 2011 ----------------------------------------- Dated, this the 29th day of August, 2011 J U D G M E N T K.M.Joseph, J. C.M.Appln.No.885/2011 is an application to condone the delay of 2213 days in preferring the appeal. Petitioner/appellant was the defendant in a suit for money filed by the respondent. 2. Briefly put, the averments contained in the affidavit in support of the petition are as follows: Appellant had entrusted the matter with an Advocate. He bonafide believed that the Advocate would inform him about the progress of the case. Then he received notice from the Sub Court, Vatakara in E.P.No.57/2005 for attachment of his undivided half share of property and sale of the same. Subsequently he enquired with his Advocate, but, he was not aware of the progress of the case. When he enquired through another lawyer about the suit it was found that the said case had been decreed exparte. On further enquiry, it was found that a vigilance case is pending against the Advocate. He filed application under Order IX Rule 13 of the Code of Civil Procedure RFA No.459/2011 -2- to set aside the exparte decree along with an application to condone the delay in filing the petition to set aside the exparte decree. Both the applications were dismissed. The restoration application and review application were dismissed and even the writ petition was dismissed. The blame is to be put at the door step of the counsel. Appellant was bonafide litigating and there is no willful default, it is submitted. 3. We heard Sri.Jayakumar, learned senior counsel appearing for the petitioner/appellant. In fact, we perused the order passed by the learned Judge in OP(FC) No.991/2010 challenging the dismissal of the application to set aside the ex parte decree. We notice that the judgment in OP was pronounced on 3rd December, 2010 and copy of the judgment was received on 23.12.2010. Even thereafter the appeal is presented only on 18.6.2011. We see no reason to condone the delay in filing the appeal. The application is dismissed. Consequently, the Regular First Appeal is also dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS