IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 FAO.No. 88 of 2011() -------------------- OS.149/2002 of SUB COURT,NEYYATTINKARA .................... APPELLANTS/PETITIONERS/DEFENDANTS -------------------------------------------------------------- 1. RAMESH, SON OF RAMACHANDRAN REDDIAR, P.G.R.COMPOUND, THAMARAKULAM WARD, KOLLAM. 2. AMBILI, W/O.RAMESH, P.G.R.COMPOUND, THAMARAKULAM WARD, KOLLAM. BY ADVS. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA) RESPONDENT/COUNTER PETITIONER/PLAINTIFF ------------------------------------------------------------------------ PALANIAPPAN, SON OF RAMASWAMI, PADMA HOUSE, WARD NO.8, PALLICHAL VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM. 695 121. BY ADVS. SRI.P.KESAVAN NAIR SRI.K.G.CLEETUS THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 31/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ``````````````````````````````````````````````````````` F.A.O. No. 88 of 2011 ``````````````````````````````````````````````````````` Dated this the 31st day of March, 2011 J U D G M E N T Thottathil B.Radhakrishnan, J. This appeal is filed by the defendant in a suit for money. He challenges the order by which the court below dismissed an application to set aside an ex-parte decree and for condonation of delay in filing such an application. The delay is of 809 days. 2. After framing issues, trial commenced. Objections were raised as to the admissibility of a document. That went against the plaintiff. It was held that the document in question was a bond and not an agreement and, therefore, further stamp duty had to be levied. That led to a writ petition before this Court in 2004, at the instance of the plaintiff. On 31.05.2007, that was allowed and it was held that the FAO.88/2011 : 2 : document is an agreement. Court below was directed to mark the document and proceed with the trial. This Court, however, did not fix any date for appearance of parties before the trial court. Though act of court was prejudiced none, the plea of the defendant that he did not know about the ex-parte decree passed in the suit for more than 809 days cannot be taken completely on its face value. Though that can be treated as a plausible explanation as a sufficient cause falling within the purview of Section 5 of the Limitation Act, we are inclined to take a view particularly because the suit was a contested matter and the parties were before this Court. The defendant stands to say that he was awaiting a notice from the trial court. Such wait in this case would have been a big long. We say this because even execution proceedings are commenced. 3. Yet, on the totality of the facts and circumstances, we are inclined to think that the appellant should have been given an opportunity to have his defence tried on merits. This FAO.88/2011 : 3 : can only be on terms. On query by us, we are told that he has no order of attachment of any of the shops of the defendant. The ends of justice would be satisfied, if the defendant offers security to the satisfaction of the court below and place a cost of `10,000/-. 4. In the result, this appeal is allowed, on condition that the appellant will pay `10,000/- to the respondent through the counsel appearing before this Court, within a period of three months. Appeal ordered accordingly. Parties are directed to appear before the court below on 24.05.2011. The Office will communicate this order to the court below. Sd/- (THOTTATHIL B. RADHAKRISHNAN, JUDGE) Sd/- (S.S.SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. To Judge