IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 OP(C).No. 790 of 2010(O) ------------------------------ EP.NO.30/2007 IN OS.61/2003 of SUB COURT, NEDUMANGAD .................... PETITIONERS/JUDGMENT DEBTORS ------------------------------------------ 1. IGNATIUS, S/O. VARGHESE, RESIDING AT PARUKOTTUKUZHI THADATHARIKATHU VEEDU, PANNIYODE, VEENAKAVU VILLAGE, TRIVANDRUM. 2. L. ALOUSHIOUS, UD CLERK, KSRTC, KATTAKADA, DHANYA KALLAMAM, PANNIYODE, VEERANKAVU VILLAGE, TRIVANDRUM. 3. L. VINCENT, S/O. LUIS, LECTURER, GOVERNMENT COLLEGE, NOW RESIDING AT SANGEETH, KATTAKADA VILLAGE, TRIVANDRUM. BY ADV. SRI.M.R.SARIN RESPONDENT(S):DECREEHOLDER --------------------------------------- FEDERAL BANK LIMITED, KALLIKADU BRANCH, REPRESENTED BY ITS MANAGER, KATTAKADA, TRIVANDRUM - 695 002. BY ADVS. SRI.GEORGE VARGHESE (MANACHIRACKEL) SRI.P.R.MILTON THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 790/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT DATED IN O.S.61/03. P2: COPY OF EXECUTION PETITION NO.30/07 IN O.S.61/03 IN FILED BY THE RESPONDENT. P3: COPY OF I.A. NO.630/08 IN O.S. NO.61/03 IN O.S. NO. 61/03 SUB COURT. P4: COPY OF I.A. NO.631/08 IN O.S. NO.61/03 IN O.S.61/03 SUB COURT NEDUMAGAD. P5: COPY OF RECEIPT ISSUED BY THE RESPONDENT. P6: COPY OF I.A. NO.721/2009 IN O.S. NO.61/03. P7: COPY OF I.A. NO.722/2009 IN O.S.61/03. P8: COPY OF I.A. NO.1081/2010 /09 IN O.S. NO. O.S.61/03. P9: COPY OF THE ORDER IN I.A. NO.722/2009 AND 721/2009 IN O.S. NO.61/03. P10: COPY OF THE ORDER IN I.A. NO.1081/2010 IN O.S. NO. 61/03. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.790 of 2010 ==================================== Dated this the 20th day of September, 2011 J U D G M E N T Petitioners are defendants in O.S. No.61 of 2003 of the court of learned Sub Judge, Nedumangad. That is a suit filed by the respondent for recovery of money. An ex parte decree was passed on 29.10.2003. Respondent filed E.P. No.30 of 2007 for recovery of `8,32,867/- with future interest and costs. Petitioners filed I.A. Nos.630 of 2008 to set aside the ex parte decree and I.A. No.631 of 2008 to condone the delay of 1711 days. Those applications were dismissed for default. That was followed by I.A. Nos.495 and 496 of 2009 for restoration of I.A. Nos.630 and 631 of 2008 and condone the delay of 137 days. In the meantime the matter was sent to the Adalath for settlement. It appears that there was some talk of settlement but it did not fructify. It is not disputed that during that time petitioners paid Rs.2.5 lakhs (Rupees two and half lakhs only) as per Ext.P5, receipt dated 21.08.2009. Since the settlement did not take place, case was sent back to the learned Sub Judge. There, I.A. Nos.495 and 496 of 2009 were dismissed for default. Petitioners then filed I.A. O.P(C) No.790 of 2010 -: 2 :- No.721 of 2010 to restore I.A.Nos.495 and 496 of 2009 and I.A. No.722 of 2010 to condone the delay of 137 days. Those applications were allowed as per Ext.P9, order dated 08.10.2010 on condition of deposit/payment of `50,000/- towards the decree debt within 15 days from the date of that order. But petitioners were not able to comply with the said condition that consequently I.A. Nos.721 and 722 of 2010 were dismissed. Petitioners filed I.A. No.1081 of 2010 for review of Ext.P9, order. That application was dismissed as per Ext.P10, order darted 09.11.2010. Exhibits P9 and P10, orders are under challenge in this proceeding. 2. Learned counsel for petitioners contends that apart from the payment made as per Ext.P5, a further sum of `1,73,000/- was also paid but learned counsel for respondent was not able to confirm the same. 3. Fact remained that while I.A. Nos.495 and 496 of 2009 were pending the matter was referred to the Adalath and there was some settlement talk also. It is not disputed that Rs.2.5 lakhs was paid to the respondent as per Ext.P5, receipt dated 21.08.2009. It is thereafter that since there was no settlement case was sent back to the learned Sub Judge. Followed by the same applications were dismissed as per Exts.P9 and P10, orders. O.P(C) No.790 of 2010 -: 3 :- 4. Having heard learned counsel on both sides, considering the amount paid by petitioner and payable by the petitioners I am inclined to think that petitioners have to be given an opportunity to contest the case. But I find that the condition imposed by the learned Sub Judge in Ext.P9, order to pay `50,000/- within 15 days from that order is a bit harsh. Raising a sum of `50,000/- within 15 days is not that much easy. Learned counsel for respondent submitted that the condition imposed by the learned Sub Judge as per Ext.P9, order is reasonable having regard to the amount involved in the case and there is no reason to interfere. Learned counsel also submitted that in case this Court is inclined to interfere with Exts.P9 and P10, orders, to avoid prolonging of matter this Court may consider whether I.A. Nos.630 and 631 of 2008 and I.A. No.495 and 496 of 2008 could also be allowed. I have heard learned counsel for petitioners also in this regard. 5. Having regard to the circumstances stated I am inclined to think that all the pending applications could be allowed but subject to payment of reasonable amount as costs by petitioners. Whatever be the reason thereof, execution of the decree is prolonged and if request of petitioners is accepted the O.P(C) No.790 of 2010 -: 4 :- decree is to be set aside for no fault of respondent. If I am to consider only Exts.P9 and P10, orders and interfere with that alone, other pending applications will have to be decided by the trial court. It would only prolong the proceedings. Hence I am inclined to allow all above said pending applications on payment of costs of `15,000/- to the respondent within a month from this day. Resultantly, Original Petition is allowed. Exhibits P9 and P10, orders will stand set aside, I.A. Nos.1081 of 2010, 722 of 2009, 721 of 2009, 496 of 2009, 495 of 2009, 631 of 2008 and 630 of 2008 will stand allowed and the ex parte decree and judgment dated 20.10.2003 in O.S. No.61 of 2003 of the court of learned Sub Judge, Nedumangad are set aside on condition that petitioners paid to the respondent `15,000/- (Rupees Fifteen thousand only) by way of costs within one month from this day and produced receipt in the trial court or deposited the said amount in the trial court for payment to the respondent within the aforesaid time. On such deposit/payment applications referred above will stand allowed and the ex parte decree and decree judgment set aside. In case the condition for deposit/payment of costs is not complied as above stated, this O.P(C) No.790 of 2010 -: 5 :- Original Petition will stand dismissed in confirmation of Exts.P9 and P10, orders. In case condition is complied, applications are allowed and ex parte decree is set aside and learned Sub Judge shall dispose of the suit as early as possible having regard to the fact that suit is of the year 2003 and the ex parte decree was passed in 2003. The trial court shall make every endeavour to dispose of the suit within six months from the date (in case) the ex parte decree and judgment stand set aside. THOMAS P. JOSEPH, JUDGE. vsv