IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 FAO.No. 179 of 2010 --------------------------- AGAINST THE ORDER DATED 23/10/2009 IN IA.1136/09 IN OS.93/2007 of SUB COURT, ATTINGAL .................... APPELLANT (S): PETITIONER: ----------------------------------------- SAROJAM, D/O.APPIAMMA, ALARA VEEDU, VAVAMOOLA, PETTAH VILLAGE, THIRUVANANTHAPURAM TALUK. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENT: ---------------------------------------------- SASANKAN, S/O.KRISHNAN, CHITRALAYAM, KURAKKADA (P.O), KIZHUVILAM DESOM, KIZHUVILAM VILLAGE, CHIRAYINKEEZHU TALUK. PIN-695 104. BY ADV. SRI.LATHEESH SEBASTIAN. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ORDERS ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P.Q.BARKATH ALI, JJ. ------------------------------------------------------ F.A.O.No.179 of 2010 & C.M.Appln. No.1210 of 2010 ---------------------------------------------- Dated, this the 16th day of September, 2010 J U D G M E N T Thottathil B.Radhakrishnan, J. The appealing defendant and the respondent plaintiff have a very peculiar relationship. The respondent went to the Family Court on the premise that the appellant is his wife. Whether there was a dispute on that or not, the Family Court returned the OP for presentation before the Civil Court. Thereafter, the Civil Court passed an exparte decree against the appealing defendant, the woman. She filed an application to set aside the exparte decree. Her stand is that she was not served with summons at all and she was unaware of the decree. She only obtained some notice in connection with execution. Therefore she, in terms of law, may have to explain only the plea that she had put forward. She has to sustain it in terms of law. The court below, however, took it that going by the date of decree there is delay in filing the application to set aside the exparte decree and dismissed it on the ground that there is no application to condone the delay. FAO 179/2010 -2- We are clear in our mind that, if the case of the defendant seeking to set aside the exparte decree is that he/she was not served with summons and she was not aware of the decree, there is no question of limitation running against that person for any request to set aside the exparte decree unless the time lag after knowledge of the decree exceeds the statutory period. We have also seen the document alleged to have been executed by the appellant in favour of the respondent. We do not propose to indicate anything about the merits of the matter, but, would prefer to leave them to adduce evidence before the court below because the appealing defendant has to establish that she was not served with summons and was unaware of the decree within the statutory period. For this purpose we set aside the impugned order allowing the C.M.Application and FAO and direct the court below to take up the matter for decision on I.A.No.1136/2009 after giving an opportunity to the parties to adduce evidence in the light of what is stated above. Taking into consideration the different aspects of the matter we order that the confirmation of sale pursuant to the impugned decree and all further proceedings in execution will stand deferred until the court below decides I.A.No.1136/2009 finally. The court below will make endevour to expedite the final disposal of that FAO 179/2010 -3- interlocutory application. (THOTTATHIL B.RADHAKRISHNAN) JUDGE. (P.Q.BARKATH ALI) JUDGE. MS