IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 FAO.No. 205 of 2008() --------------------- AGAINST THE ORDER DATED 24/06/2008 IN IA 2138/2007 IN OS.133/2002 of SUB COURT, OTTAPPALAM .................... APPELLANT : -------------- ALAVI HAJI,S/O.CHOLASSEY AYIDRU, MANKADA AMSOM,CHERIYAM DESOM, PERINTHALMANNA TALUK,MALAPPURAM DISTRICT. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENT: --------------- EDEENA SUKUMARAN,W/O.UPPARAPERUMBARIL SUKUMARAN,BHEEMANAD AMSOM AND DESOM, MANNARKKAD TALUK,PALAKKAD DISTRICT. ADV. SRI.T.SETHUMADHAVAN FOR R1 SRI.PUSHPARAJAN KODOTH FOR R1 SRI.K.JAYESH MOHANKUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & C.K.ABDUL REHIM, JJ. ---------------------------------------------- F.A.O. No.205 of 2008 ---------------------------------------------- Dated 5th January, 2009. J U D G M E N T Kurian Joseph, J. This is an appeal directed against the order dated 24.6.2008 in I.A.2138/07 in O.S.133/02 on the file of the Sub Court, Ottappalam. The application was filed for setting aside the ex parte decree under Order 9 Rule 13 of the Civil Procedure Code. The case was posted in the special list for trial on 13.9.2007. It is seen from the records that the learned counsel appearing for the appellant reported no instruction and hence an ex parte decree was passed. According to the counsel appearing for the respondent, the only attempt of the appellant was to protract the matter. Be that as it may, having gone through the memorandum of appeal, and having heard the counsel on both sides, we are of the view that it is only in the interests of justice that a fresh opportunity is given to the appellant to prosecute the matter on merits, by putting the appellant to terms. Accordingly, we set aside the order dated 24.6.2008 in I.A.2138/07 in O.S.133/2002 on the file of the Sub Court, Ottappalam. The said application stands allowed. The parties shall appear before the FAO NO.205/08 2 court below on 2.2.2009. The Sub Court shall dispose of the suit before the court closes for summer vacation in 2009. The parties shall cooperate with the court for disposal of the suit. The appellant shall pay cost to the tune of Rs.3,000/- to the counsel appearing for the respondent before this court within two weeks from today and shall produce a memo to that effect before the Sub Court, Ottappalam. KURIAN JOSEPH, JUDGE. C.K.ABDUL REHIM, JUDGE. tgs KURIAN JOSEPH & C.K.ABDUL REHIM, JJ ---------------------------------------------- F.A.O. No.205 of 2008 ---------------------------------------------- J U D G M E N T Dated 5th January, 2009.