IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 FAO.No. 177 of 2006() --------------------- AGAINST THE ORDER DATED 24/11/2005 IN IA 548 2004 IN OS.57/2000 of SUB COURT, CHERTHALA .................... (S): APPELLANT(PETITIONER IN THE IA): ---------------------------------------------------- VARGHESE, THATTARUPARAMBIL, KODAMTHURUTH VILLAGE, EZHUPUNNA SOUTH MURI, CHERTHALA. BY ADV. SRI.V.L.SHENOY RESPONDENT(S): (RESPONDENT IN THE IA): -------------------------------------- P.K. ANAND, PARALATHARAYIL, PANAVALLY MURI, CHERTHALA. ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 177 OF 2006 -------------------------------------------------------- Dated 29th June 2009 Judgment RAMAN, J. The appellant was the defendant in a suit for specific performance. On 20.02.2004, he was declared ex parte. The suit was decreed and the balance amount less advance paid was deposited by the respondent. The appellant filed a petition to set aside the ex parte decree along with a petition to condone the delay, supported by an affidavit. In the affidavit, the explanation given for the delay is that he was ill from 04.03.2004 to 07.04.2004. But, for the default on 20.02.2004, the date on which the case was posted, there is no explanation. The fact that he became ill during the above said period, is no explanation for his default on 20.02.2004. That apart, this is a case where, even after 4 years, the appellant has not filed any written statement. The property purchased by him was agreed to be sold on the very same date. Thus, he was not interested to hold on the property. The above conduct of the appellant FAO 177/06 2 would clearly show that there was no interest shown by him in prosecuting the suit. In such circumstances, the court below, after appreciating the factual situation with the materials on record, came to the irresistible conclusion that it is not a fit case where it can exercise its discretion in condoning the delay. Accordingly, the delay was not condoned and the ex parte decree was not set aside. 2. We heard the learned counsel for the appellant also. He submitted that on 20.02.2004, the date on which the case was posted, it was for payment of the balance court fee. This contention is seriously disputed by the other side. As a matter of fact, the case was adjourned to 20.02.2004, then to 24.02.2004 and again, to 03.03.2004 and ultimately, the ex parte decree was passed only on 05.03.2004. In the circumstances, it could be said that the discretion exercised by the court below is, in any way, illegal. Having found so, it follows that there is no merit in this appeal and it is liable to be dismissed. FAO 177/06 3 3. The learned counsel for the respondent, however submitted that the total consideration payable as per the agreement has been deposited in 2002 and he is prepared to deposit Rs.1,00,000/- (Rupees One Lakh only) more towards sales consideration. This submission is recorded and we direct that the above said sum of Rs.1,00,000/- (Rupees One Lakh only) also be deposited by the respondent before the court below within one month from the date of receipt of a copy of this judgment. The FAO is dismissed subject to the above direction. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 177/06 4 FAO 177/06 5