IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 FAO.No. 251 of 2011 ---------------------------- I.A.203/2011 IN OS.33/2008 of SUB COURT, CHENGANNUR .................... APPELLANT (S)/PETITIONER/DEFENDANT: ------------------------------------------------------------ RATNAKUMAR,AGED 49 YEARS,S/O.SUKUMARAN, KALEEKKALETHU VADAKETHIL VEETTIL,MAMBRA MURY, CHERIYANADU VILLAGE,CHENGANOOR TALUK. BY ADV. SRI.T.RAJESH RESPONDENT(S): COUNTER PETITIONER/PLAINTIFF: ---------------------------------------------------------------------------- SASI ANANDAM,ANUGRAHA VEETTIL, KADIKKADU MURY,CHERIYANADU VILLAGE,REPRESENTED BY THE POWER OF ATTORNEY HOLDER UNNIKRISHNAN, S/O.CHELLAPPAN,KOTTAMPURAYIL,KOLLAKADAVU, CHENGANOOR, PIN-689 594. BY ADV.SRI.IYPE JOSEPH THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.No.251 of 2011 ----------------------------------------- Dated, this the 20th day of September, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the defendant in a suit for realisation of money. He challenges the order passed by the Sub Court, Chengannur in a petition filed under Order IX Rule 13 Code of Civil Procedure. 2. The suit is decreed on 9.6.2008. Appellant had entered appearance and filed written statement. The court below has reasoned inter alia as follows: Though case was referred to Lok Adalath, the appellant was absent. On 9.6.2008 also the appellant was not present. The case is decreed exparte on 9.6.2008. In the execution petition also there is notice served. Appellant's mother accepted notice stating that the appellant had gone for job and would reach home by night. It is further stated that in the execution proceedings mother of the appellant had filed a claim petition. In that petition an Advocate Commission was deputed. In the mahazar prepared by the Advocate Commissioner it is specifically stated that the appellant was FAO 251/2011 -2- present when the order was executed. It is therefore found that at least from 17.10.2010 the appellant is having knowledge about the decree. Appellant, however filed petition on 5.4.2011 stating that he got information about the decree on 28.3.2011. Appellant is found to be in station and accordingly the petition is dismissed. 3. At the admission stage itself there was a caveat. We proceeded to hear the learned counsel for the appellant and learned counsel for the respondent. Learned counsel for the respondent would no doubt point out that there is no ground as correctly found by the court below. 4. Learned counsel for the appellant would no doubt point out that the observation in the mahazar of the Advocate Commissioner that the appellant was present at the time was not correct. We take a lenient view and give an opportunity for an adjudicated decision. However, it can be only on terms. In the facts of this case we direct that the application filed by the appellant will stand allowed and the exparte decree will stand set aside on the following conditions being fulfilled. a) The appellant will pay Rs.5,000/- (Rupees five thousand only) as costs to the learned counsel appearing for the respondent FAO 251/2011 -3- in this Court and produce the memo to that effect within two weeks from today. b) The appellant must deposit 40% of the amount decreed also within period of one month from today. If the above said conditions are fulfilled the trial court will take up the matter and proceed to dispose of the suit finally on or before 31.1.2012. We make it clear that in case either the cost is not paid or the amount is not deposited the appeal will stand dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS