IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 WP(C).NO. 11406 OF 2010(O) ---------------------------------------- AGAINST E.P. NO.237 OF 207 IN OS.218/2005 OF PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER(S): --------------------- VILASINI, W/O.KIZHUPPILLY KARAPPAN, VELLIKULANGARA VILLAGE, MUKUNDAPURAM. BY ADV. SRI.T.M.CHANDRAN SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY RESPONDENT(S): ----------------------- 1. FEDERAL BANK LIMITED, MANNAMPETTA BRANCH, THRISSUR DISTRICT. 2. BEENA, W/O.CHULLIPARAMBIL PARAMESWARAN, VARANDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. PARAMESWARAN, S/O.CHULLIPARAMBIL MAMMAN, VARANDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF E.A. NO.1837 OF 2009 DATED 14.12.2009. EXHIBIT P2 TRUE COPY OF E.A. NO.1838 OF 2009 DATED 14.12.2009. EXHIBIT P3 TRUE COPY OF ORDER DATED 6.2.2010 IN E.A. NO.1837 OF 2009 IN E.A. NO.1838 OF 2009. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.11406 of 2010 ==================================== Dated this the 27th day of May, 2010 J U D G M E N T Respondents though served, there is no response from them. Petitioner preferred a claim petition – E.A.No.2508 of 2008 in E.P. No.237 of 2007 in O.S. No.218 of 2005 of the court of learned Principal Sub Judge, Irinjalakuda. Claim petition was posted on several times for evidence and hearing from 14.1.2009 onwards. On 22.10.2009 it was dismissed for default. Petitioner filed I.A. Nos.1837 and 1838 of 2009 for restoration of the claim petition and to condone the delay of 23 days in filing that application. Learned Sub Judge observed that though there is lack of bona fides on the part of petitioner she is being given an opportunity to prosecute the claim petition for a proper determination of the dispute involved and as condition directed her to deposit 10% of the decretal amount as security on or before 20.02.2010 failing which the application for restoration of claim petition would stand dismissed. Learned counsel submits that petitioner who is a poor lady aged about 63 years is not able to raise that much amount as ordered and that since petitioner is not a party to the decree, she cannot be asked to deposit portion of the decretal amount as W.P(C) No.11406 of 2010 -: 2 :- security. 2. I am inclined to accept that contention. Petitioner need not have been asked to deposit a portion of the decretal amount since she is not liable for the decretal amount and she is not seeking to set aside the decree. She is concerned only with the claim petition concerning property attached and intended to be sold. However, considering the circumstances stated by learned Judge in the impugned order I am satisfied that petitioner has to pay costs as a condition for allowing the application for restoration of the claim petition dismissed for default which having regard to the circumstances is fixed as Rs.1,500/- payable to respondent No.1/decree holder. The Writ Petition is allowed. The condition imposed on petitioner to deposit 10% of the decretal amount as security on or before 20.02.2010 is set aside. Instead petitioner is directed to pay/deposit in the executing court for payment to respondent No.1, Rs.1,500/- (Rupees One thousand and five hundred only) by way of costs on or before 10.06.2010. THOMAS P. JOSEPH, JUDGE. vsv