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 24TH JUNE 2010 / 3RD ASHADHA 1932 FAO.No. 150 of 2010() --------------------- I.A.9641/2009 & I.A.9642/2009 IN OS.229/2009 OF II ADDL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER/DEFENDANT ----------------------------------------------------- NANDAKUMAR, AGED 56 YEARS, S/O. SAROJINI AMMA, PARAKULANGARA ATHIYARATH HOUSE MINALUR VILLAGE, THRISSUR DISTRICT AND PRESENTLY RESIDING AT " USHA BHAVAN", KARAT LANE, NEAR THENJITHUKAVU TEMPLE, AYYANTHOLE, THRISSUR. BY ADV. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENT/RESPONDENT/PLAINTIFF -------------------------------------------------------- PRASANNAKUMAR, AGED 47 YEARS, S/O. SAROJINI AMMA, PARAKULANGARA ATHIYARATH HOUSE MINALOOR DESOM, MINALOOR VILLAGE, THALAPPILLY TALUK. ADV. SRI.P.SANTHOSH (PODUVAL) THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.150 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of June, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The parties are brothers. The respondent sued the appellant for a decree for specific performance of a contract. Going by the materials as now available, it appears that the appellant- defendant has a case that certain blank papers were signed and entrusted to the respondent- plaintiff to make necessary arrangements to provide a loan to support the education of the defendant. Whatever that be, even without filing the written statement, it may not be proper to look at the strength of the rival contentions. Be that as it may, the suit filed in 2009 was decreed ex parte on 28.8.2009. It appears that FAO150/10 -: 2 :- the defendant did not file written statement. Attributing the delay in filing the written statement and the inability to instruct the counsel, to illness, the defendant applied to set aside the ex parte decree and also sought condonation of 86 days in filing that application. The court below dismissed those applications. Hence, this appeal. 2.We issued notice before admission to the plaintiff, taking into consideration the relationship of the parties and having regard to the fact that the suit is only of the year 2009, and the rival contentions as projected by the learned counsel for the appellant prompted a consideration as to whether the matter should be permitted to go for trial on merits. Having heard the learned counsel on either side, we are satisfied that the issues inter partes should be permitted to be raised to be put to trial and the delay in applying to set aside the ex parte decree ought to have been condoned. There was sufficient cause to set aside the ex parte FAO150/10 -: 3 :- decree, going by the averments in the application filed for such relief. It is also submitted by the learned counsel for the respondent-plaintiff that following the ex parte decree, the plaintiff has deposited the balance sale consideration before the court below. He is right in requesting that the said amount may be permitted to be kept in a fixed deposit so that it will generate interest in the event of the ex parte decree being set aside. With the aforesaid, we set aside the impugned common order and allow I.A.9641/2009 and I.A.9642/2009 in O.S.229/2009 in the Court of the Second Additional Sub Judge, Thrissur on condition that the appellant pays the respondent an amount of Rs.3,000/- as costs, by making remittance to the counsel appearing for the respondent before this Court, within two weeks and producing memo/receipt of such payment before the court below. On production of that, the court below will take up the matter, grant three weeks' FAO150/10 -: 4 :- time for the defendant to file written statement and then proceed with the case in accordance with law. In such event, the amount deposited by the plaintiff before the court below would be kept in a fixed deposit in the name of the plaintiff with a bank of his choice. The court below will also give appropriate priority for trial and disposal of this case, subject to the pendency of old cases before that court. This appeal is allowed accordingly. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- S.S.Satheesachandran, Judge. Sha/2806 -true copy- P.S.to Judge.