IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 FAO.No. 19 of 2011() ------------------------------ (AGAINST COMMON ORDER IN IA 921/2008 AND IA 922/2008 IN O.S.NO.44/2001 of SUB COURT, SULTHAN BATHERY) .................... APPELLANT/PETITIONER ---------------------------------------- THEKKUMTHARA SERVICE CO-OPERATIVE BANK LTD., REPRESENTED BY ITS SECRETARY, VENGAPPALLI AMSOM, VYTHIRI TALUK,WAYANAD DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. E.P.RAJAN NAIR, S/O.NARAYANA KURUP, AGED 61 YEARS, AGRICULTURE, KOTTATHARA AMSOM DESOM VYTHIRI TALUK. 2. M.MADHAVAN NAMBIAR, S/O.THENAMANGALATH KRISHNAN NAIR, AGED 61 YEARS, BANK SECRETARY, KOTTATHARA AMSOM DESOM, VYTHIRI TALUK-673 576. BY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 25/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts THOTTATHIL B. RADHAKRISHNAN & P.S.GOPINATHAN, JJ. ---------------------------- F.A.O.No.19 OF 2011 ----------------------------- Dated this the 25th day of January, 2011 J U D G M E N T ~~~~~~~~~~~ Thottathil B. Radhakrishnan, J. The appellant is a Co-operative Society. The 1st respondent herein filed a suit as O.S.No.44/2001 before the Sub Court, Sulthan Bathery. We find that the appellant was the 2nd defendant therein. The 2nd respondent was the first defendant. It is submitted that the Society was impleaded in the suit at its own instance and later by order of court it was removed from the array of parties. After its removal from the array of parties, the suit stood as one between the sole plaintiff and the then sole defendant Madhavan Nambiar, 2nd respondent herein. The suit was decreed ex parte. Though the suit was for specific performance, the court below granted a decree for return of advance since the plaintiff gave up the relief for specific performance. F.A.O.No.19/2011 2 2. Pointing out that the entire exercise before the court below was fraudulent, the appellant Society sought that the ex parte decree be set aside. It is stated that it has also filed O.P.No.242/2011 before this Court, whereby the Society challenges the dismissal of its application filed before the court below for review of the order removing it from the party array. 3. The merits and demerits of O.P.No.242/2011 being preserved, what is in hand before us is only an appeal arising from an order refusing to set aside an ex parte decree and to condone delay in applying to set aside the ex parte decree. Admittedly, at the time when the ex parte decree was passed, the appellant Society was not a party to the suit. Obviously, therefore, it could not have invoked the provisions of Order IX Rule 13 to set aside the ex parte decree. The plaintiff being the dominus litus it does not lie with any person, who was removed from the party array, to say that the ex parte decree is to be set aside. Therefore, we do not find any ground on which the Society could have moved the court below to set aside the ex parte decree under Order IX Rule 13. This appeal has, therefore, necessarily to fail. F.A.O.No.19/2011 3 4. We record the apprehension expressed by the learned counsel for the appellant regarding the Society being duped and public funds being abused by the 2nd respondent, who is none other than the former secretary of the Society. He says that this would be the subject matter of O.P.No.242/2011, which is still pending before this Court. Therefore, we clarify that this judgment will not, in any manner, impair the right, if any, of the appellant to relief either in the aforesaid referred Original Petition or by any other means known to law on any ground of fraud or otherwise. Subject to the aforesaid, this appeal is dismissed. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (P.S.GOPINATHAN, JUDGE) ps