IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No.36250 of 2008 (M) ---------------------------------- OS.290/2005 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: --------------- R. SATHEESH KUMAR, SIVANANDA BHAVAN, INDIRA NAGAR, PEROORKADA.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENTS: ------------------ 1. THE THIRUVANANTHAPURAM SERVICE CO-OPERATIVE BANK, REPRESENTED BY ITS SECRETARY, PRESS ROAD, PULIMOODU, THIRUVANANTHAPURAM. 2. THE PRESIDENT, THIRUVANANTHAPURAM SERVICE CO-OPERATIVE BANK, RRESS ROAD, PULIMOODU, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.36250 of 2008 ------------------------------------------------ Dated this the 10th day of December, 2008 JUDGMENT The petitioner is the defendant in Ext.P1 suit for realisation of an amount of Rs.3 lakhs. The suit was decreed ex parte. Ext.P3 petition was filed by the petitioner/defendant to set aside the ex parte decree invoking order IX Rule 13 C.P.C. When the matter came up for consideration before the trial court the court passed Ext.P5 order which is on the following lines:- “Both sides present. Petition not opposed prayed for allowing the petition on terms. Allowed on a costs of Rs.250/-. Call on 28/10/08.” 2. In compliance with the said order, the petitioner/defendant paid the cost so ordered and that was received by the plaintiff's counsel by endorsement on the memo as evidenced by Ext.P6. Though as per Ext.P5 the case was being adjourned to 28/10/08 for W. P. C. No.36250 of 2008 -2- reporting compliance with the order, strangely enough on 28/10/08 the court suo motu passed Ext.P7 order directing the petitioner to deposit half of the plaint amount to have the ex parte decree set aside and adjourned the case to 15/01/09 observing that cost was being ordered mistakenly on the impression that the petition was to restore the suit back to file and not a petition seeking to set aside the ex parte decree. If at all, the court was under such a mistake, the parties cannot be faulted on that score. Further, Ext.P5 order was passed on consent of both sides and the cost ordered has been received also by the plaintiff's counsel as evidenced by Ext.P6 and this shows that both sides have no grievance in setting aside the ex parte decree. Under such circumstance, it was highly improper for the court below to have passed Ext.P7 order to deposit half of W. P. C. No.36250 of 2008 -3- the plaint amount to have the ex parte decree set aside. In fact as on the date of passing of Ext.P7 order on 28/10/08 there was no ex parte decree as it stood set aside on payment of cost vide Ext.P6 memo in compliance with Ext.P5 order. In the circumstances, Ext.P7 order is illegal, unwarranted and is unsustainable and is set aside even without notice to the respondents as the respondents were agreeable to have the ex parte decree set aside as evidenced by Exts.P5 and P6 and is therefore, not affected by this Court's order setting aside the illegal and unsustainable Ext.P7 order. Petitioner is directed to produce a copy of this judgment before the trial court forthwith to enable the court to proceed with the suit without delay. 3. Issue copy of this judgment urgently to the counsel for the petitioner. Also transmit a copy of this judgment to the trial W. P. C. No.36250 of 2008 -4- court forthwith. 4. This Writ Petition is disposed of as above. K.P.BALACHANDRAN, JUDGE kns/-