IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 FAO.No. 58 of 2009() -------------------- AGAINST THE ORDER DATED 18/11/2008 IN IA 128/2008 IN OS.38/2006 of SUB COURT, KASARAGOD .................... PETITIONERS ------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF RAILWAYS, NEW DELHI. 2. THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.R.SATISH KUMAR RESPONDENT(S): --------------- 1. MOHAMMED, MUTTAM KUNNIL, SHIRIYA VILLAGE, P.O. SHIRIYA, VIA KUMBLA, KASARAGOD TALUK. 2. ISMAIL, -DO- 3. JAMEELA, -DO- 4. AMINATH MANEENA, -DO- 5. AYSHA JAMSHEENA, -DO- 6. ABDUL JUNAID, -DO- 7. MOHAMMED MANAN, -DO- ADV. SRI.M.L.SAJEEVAN FOR R SRI.JAISON JOSEPH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 58 OF 2009 -------------------------------------------------------- Dated 23rd June 2009 Judgment RAMAN, J. The appeal is filed against the common order passed in IA Nos.126 and 128 of 2008 by the Subordinate Judge, Kasaragod. IA No.128/08 is an application filed under order IX Rule 13 of CPC and IA No.126/08 is for condonation of the delay in filing the application to set aside the ex parte decree. The appellants herein are the defendants in the suit instituted by the respondents. On the appointed day, the defendants were not present and it was declared ex parte and the decree was passed. Thereafter, the present IAs were filed. The court below after considering the averments in the affidavit, was not satisfied that the delay was properly explained. Accordingly, the application for condonation of delay was dismissed and consequently, the application filed under order IX Rule 13 of CPC was also dismissed, against which the present appeal is filed. FAO 58/09 2 2. Pursuant to the notice issued, parties have appeared. Heard. It is the case of the appellants that the land acquisition work of doubling the railway line was done by the Deputy Chief Engineer (Construction), Southern Railway, Kannur and the supervision work was done by the Divisional Manager, Southern Railway, Palakkad. In the suit, they were not made parties and hence the Railway could not engage an Advocate in time and make arrangements thereto. Only when notice in the execution petition was served, enquiry was made whereupon information was received about the ex parte decree passed against them. The court below found that the appellants had no case that the summons was not served on them. Records would reveal that the second appellant appeared by engaging a counsel. But, no written statement was filed. Therefore, it cannot be said that arrangements were not made to engage a lawyer. Once a FAO 58/09 3 lawyer is engaged, the postings of the case are presumed to be known to the parties. Therefore, the contention that only when the notice in the Execution Petition was received, the parties came to know of it, is a matter not proved. No affidavit of the Advocate or the office of the Advocate is seen produced in the case. Therefore, this is not a case where it could be said that the court below was wrong in finding that the delay is not properly explained. However, the court below did not consider as to why the applications cannot be allowed on terms being the first occasion when default was committed by the Railways. Having heard both sides, we feel that an opportunity could be granted to the appellant, however, on terms. Accordingly, we direct that the appeal will stand allowed. IA Nos.126/08 and 128/08 will be restored to file on condition that an amount of Rs.3,000/- (Rupees Three Thousand only) shall be deposited by the appellants before the court below towards costs to be paid to the respondents within one month from today, failing which, the appeal will stand dismissed. The parties shall appear before the court below on 27.07.2009. The court below may expedite the FAO 58/09 4 trial of the suit after completing the pre-trial stage, if not yet completed. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 58/09 5