IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 WP(C).No. 31984 of 2008(G) -------------------------- AGAINST THE ORDER IN EP.65/2006 IN OS.112/2002 of SUB COURT, MAVELIKKARA .................... PETITIONER(S): ------------------------ ANANDAN, AGED 50 YEARS, S/O. KUTTY, A.S. NIVAS, POTHAMPALLY SOUTH MURI, KUMARAPURAM VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SUKUMARAN, AGED 67 YEARS, KODANCHIRAYIL, POTHAMPALLY NORTH MURI, KUMARAPURAM VILLAGE. BY ADV. MR.B.RENJITHKUMAR RESPONDENT(S): ---------------------------- SOMADATHAN P., SUNIL NIVAS, ERIKKAVU P.O, KUMARAPURAM VILLAGE, ALAPPUZHA DISTRICT. R1 BY ADVS. MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), MR.A.R.DILEEP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31984/2008 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF POWER OF ATTORNEY DTD. 17/04/2007. P2: COPY OF ORDER DTD. 20/09/2007 IN I.A.NO.1810/07 IN O.S.NO.112/02 OF THE SUB JUDGE, MAVELIKKARA. P3: COPY OF COMMON ORDER DTD. 28/03/2008 IN I.A.NOS. 1891/07 AND 1646/07 IN O.S.112/02 OF THE SUB JUDGE, MAVELIKKARA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 31984 OF 2008 G ```````````````````````````````````````````````````` Dated this the 30th day of June, 2009 J U D G M E N T The writ petition is filed by the defendant in OS.No.112/02 on the file of the Sub Court, Mavelikkara. Suit was filed for recovery of money, instituted by the respondent. Suit was decreed exparte. Petitioner moved an application through his Power of Attorney for setting aside the exparte decree. That application filed under Order 9 Rule 13 CPC was dismissed for default. A restoration application moved by the petitioner to restore the above application also ended in default. Yet again, another application was filed. That also was dismissed in default. After series of such dismissal after default, the petitioner has filed the present writ petition invoking the supervisory jurisdiction of this court under Article 227 of the Constitution of India to set aside the orders passed on the application for setting aside the exparte decree and restore the suit to file enabling him to have a decision on merits. Notice of the application being given to respondent, he has entered appearance through counsel. 2. I heard the counsel on both sides. Normally, the relief claimed in the petition, in the nature of the facts and circumstances enumerated above, cannot be entertained. But, after hearing the WPC.31984/08 : 2 : submissions of the counsel on both sides, it appears atleast once the dismissal of the application for default was at a time when it was posted only for filing of objections. A consensus has now been arrived at by the parties subject to terms for restoring the suit, after setting aside the exparte decree, so that a decision be given on merits. Suit is based on a cheque purported to have been issued by the petitioner for a sum of Rs.95,000/-. Suit was decreed exparte on 28.2.04. In the execution petition filed for executing the decree, a sum of Rs.1,03,550/- was claimed. It is submitted that in the suit which ended in an exparte decree, and also in the execution proceedings, notice to the petitioner was effected by paper publication. Even before the institution of the suit he was abroad and he did not have any knowledge of the suit or the proceedings subsequently taken till the filing of the petition for setting aside the exparte is the case canvassed by him seeking indulgence of this court. Whatever be the merits of his case, in the nature of the consensus formed at the time of hearing, I find orders can be issued for restoring the suit after setting aside the exparte decree subject to the terms stated hereunder which are agreed upon by the parties. The terms agreed upon by the parties are thus:- The petitioner shall deposit a sum of Rs.50,000- towards the sum claimed under the suit before the trial court within 45 days from the date of this judgment, the amount so deposited shall be released to the WPC.31984/08 : 3 : respondent/plaintiff on his executing a bond that it will be subject to the result of the suit, and, in case, if the suit claim is found against, after trial, the plaintiff is bound to reimburse the sum so deposited, without interest, and, having regard to the injury likely to be suffered by the respondent /plaintiff in restoring the suit after such a long lapse of time, the petitioner /defendant shall pay a sum of Rs.10,000/- as cost, as a condition precedent for restoring the suit after setting aside the exparte decree, to the counsel appearing for the respondent before this court within one month from the date of this judgment, and in case the cost is not paid and deposit not made, within the time stipulated as fixed above, the writ petition shall stand dismissed. Recording the terms arrived by the parties, the writ petition is disposed in accordance thereof. Post for report after 45 days from the time fixed for deposit of the sum of Rs.50,000/- before the court below. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge