IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 F.A.O.No. 272 of 2007 --------------------- ( AGAINST THE ORDER IN IA.6312/05 IN OS.688/1999 of PRINCIPAL SUB COURT,ERNAKULAM ) APPELLANT/PETITIONER/DEFENDANT ----------------------------------------------------------- M/S.BRIDGE AND BUILDING CONSTRUCTION COMPANY (PVT) LTD,90 B, S.P. MUKHERJEE ROAD, KOLKATA-26,A PRIVATE LTD COMPANY INCORPORATED UNDER THE COMPANIES ACT AND HAVING REGISTERED OFFICE AT 90 B,S.P. MUKHERJEE ROAD,KOLKATA-26,REPRESENTED BY ITS DIRECTOR SRI.AJITH KUMAR JINDAL, AGED 37, S/O. SANWARLAL JINDAL, SALT LAKE SECTOR-1, KOLKOTTA- 700 064. BY ADV. SRI.M.RAJASEKHARAN NAYAR ADV. SRI.ANIL S.RAJ ADV. SMT.K.N.RAJANI RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------------------------------------- M/S. KAIRALI GRANITES, N.H.BYEPASS ROAD, KUNDANNOOR, NEAR WHITE FORT,VYTTILA, KOCHI 682 304 REPRESENTED BY ITS PROPRIETOR SRI.V.R.NARAYANAN EMBRAN,S/O. LATE N.RAMAKRISHNAN EMBRAN,RESIDING AT PRAGEENA, THAMARASSERI ROAD, POONITHURA VILLAGE, ERNAKULAM. BY ADV. SRI.V.SANTHARAM ADV. SRI.ANTO THOMAS ADV. SRI.LAKSHMEESH S.KAMATH THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 23/09/2008, ALONG WITH C.R.P NO. 487 OF 2007 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T. SANKARAN, JJ. ........................................................................ F.A.O. No. 272 OF 2007 & C.R.P.No. 487 OF 2007 AND C.M. APPLICATION NO. 545 OF 2007 IN C.R.P. 487 OF 2007 ......................................................................... Dated this the 23rd September, 2008 J U D G M E N T K.T. Sankaran, J: C.M. APPLICATION NO. 545 OF 2007 IN C.R.P.No. 487 OF 2007: Delay in filing the Civil Revision Petition is condoned. F.A.O. No. 272 OF 2007 & C.R.P.No. 487 OF 2007: The appellant who was the defendant in O.S.No. 688 of 1999 on the file of the Court of the Subordinate Judge, Ernakulam, was set ex parte and an ex parte decree was passed on 03.07.2001, The appellant filed I.A.No. 6312 of 2005 under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex parte decree. I.A.No. 6313 of 2005 was filed to condone the delay in filing the application to set aside the ex parte decree. The court below dismissed the applications. The application for condonation of delay was apparently dismissed on the ground that there was no representation on behalf of the appellant. The application filed under Order IX Rule 13 was dismissed on the ground that inspite of the fact that an ex parte decree was passed the appellant had applied for setting aside the ex parte order and not the decree. . 2. The application filed under Order IX Rule 13 of the Code of Civil Procedure, which was made available along with the appeal would clearly indicate that the prayer was to set aside the ex parte decree passed against the appellant on 03.07.2001 and not to set aside the ex parte order. Learned F.A.O. No. 272 OF 2007 & C.R.P.No. 487 OF 2007 2 counsel appearing for the respondent would not dispute the contention raised by the appellant in this regard. Thus it is clear that the court below has not properly exercised the jurisdiction vested in it by law. The court below has not considered the application on the merits. Only on the technical ground that the appellant could not maintain an application to set aside an ex parte order after an ex parte decree was passed, the application was dismissed. This ground stated by the court below is apparently wrong on facts. The orders passed by the court below are therefore set aside. The court below shall consider and dispose of I.A.Nos. 6312 and 6313 of 2005 afresh, after affording an opportunity of being heard to both the parties. The court below shall also afford an opportunity to the respondent to file objections, if any. The parties shall appear before the court below on 03.11.2008. The Appeal and Civil Revision Petition are allowed as above. I.A.No. 3432 of 2007 in F.A,O.No. 272 of 2007 and I.A.No. 1273 of 2007 in C.R.P.No. 487 of 2007: Dismissed. KURIAN JOSEPH, JUDGE. K.T. SANKARAN, JUDGE. lk