IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 FAO.No. 83 of 2007() -------------------- AGAINST THE ORDER DATED 16/03/2005 IN IA 1567/05 IN OS.37/2004 of PRL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONERS/DEFENDANTS: ----------------------------------------------------- 1. PAVITHRAN, S/O.VAIKKATTIL KUNHPPAN, THRITHALLUR DESO, VADANAPPILLY VILLAGE, CHAVAKKAD TALUK. 2. DEEPTH, S/O. PAVITHRAN, DO. DO. BY ADV. SRI.DILIP J. AKKARA RESPONDENT(S): RESPONDENTS/PLAINTIFF: ------------------------------------- STATE BANK OF INDIA, VADANAPPILLY,CHAVAKKAD TALUK. ADV. SRI.DINESH MATHEW J.MURICKEN FOR R1 SRI.P.V.BALAKRISHNAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON 02/07/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 83 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2009. JUDGMENT Bhavadasan, J, The respondent in this appeal instituted O.S. 37 of 2004 before the court below seeking to realise an amount of Rs.3,36,205/- with future interest from the appellant. Appellant entered appearance in the court below on 30.11.2004 and the suit was posted to 11.2.2005 for filing the written statement. Since the written statement was not filed, they were set ex parte and the suit was decreed with costs on 11.2.2005. I.A.1567 of 2005 was filed by the appellant to have the ex-parte decree set aside. Finding that no acceptable reasons have been given for the inability to file the written statement, that petition was dismissed. The said order is assailed. 2. It is at once to be noticed the decree must have been passed under Order VIII Rule 10 of the Code of Civil Procedure. If that be so, in the light of the decision reported in Manick Peter v.Surendranathan (1987(2) K.L.T. 328), such an ex-parte decree F.A.O. 83/2007. 2 is liable to be set aside under Order IX Rule 13. 3. Coming to the merits of the case, it is found that the ex- parte decree was passed only n the ground that the defendants have not filed their written statement. It is to be noticed that there was no previous default on the part of the defendants. It is pointed out that even though the written statement was not filed, counsel for the defendants had sought for an adjournment and it is contended that the defendants ought to have been given an opportunity to file their written statement. 4. As already noticed, the court below had passed the ex- parte decree only on the ground that the written statement has not been filed. It is pointed out that the defendants have serious contentions to be urged in the suit and unless the suit is decreed on merits, irreparable injury will be caused to them and they may be given an opportunity to contest the matter on merits. 5. It is seen from the records that immovable properties are mortgaged with the Bank for taking loan. Viewed from than angle, any loss or injury caused to the plaintiff can be compensated by awarding F.A.O. 83/2007. 3 cost and it will be only just and proper that the defendants be given an opportunity to urge their contentions. In the result, this appeal is allowed, the ex parte decree is set aside and the suit stands restored to file. The court below is directed to decide the suit on merits in accordance with law and in the light of what has been stated above on condition that the appellants shall pay sum of Rs.15,000/- as costs to the respondent within one month from today. If the amount is not paid within the stipulated time, the appellants will not be entitled to the benefit of this order. P.R. Raman, Judge P. Bhavadasan, Judge sb.