IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 WP(C).No. 15866 of 2009(O) -------------------------- OS.290/2000 of MUNSIFF'S COURT, DEVIKULAM .................... PETITIONER(S): ------------------------- KALIYAPPAN, AGED 61 YEARS, S/O.SANKILI MADAN 11/86, ALATHOOR MASI, MARAYOOR VILLAGE. BY ADVS. MR.K.S.HARIHARAPUTHRAN, MR.GEORGE MATHEW. RESPONDENT(S): --------------------------- K.E.ABEAL, S/O.ITTIYAVIRA, KOTTAKANAYIL HOUSE, KUROOR KARA, KOTHAMANGALAM. BY ADVS. MR.N.SUKUMARAN, MR.S.SHYAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.15866 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 27th July, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records which lead to the issuance of Exts.P1 and P2 and to issue a writ in the nature of certiorari or any other appropriate writ order or direction quashing the same. 2. To issue appropriate writ order or directions to the learned execution court to take stay all further proceedings execution of the decree in O.S.No.290/2000 on the file of the Munsiff's Court, Devicolam. 3. Such other reliefs and costs as this Hon'ble Court may deem fit and proper to grant in the nature and circumstances of the case. 2. The petitioner is the defendant in O.S.No.290/2000 on the file of the Munsiff Court, Devikulam. Suit was for money based on a promissory note which was decreed ex parte. An application moved by the petitioner to set aside the ex parte decree under Order 9 Rule 13 of the C.P.C. with a petition to condone the delay was dismissed for default. The restoration petition moved for taking back that application was also dismissed. Petitioner, thereupon, preferred an appeal as C.M.Appeal No.85/06 before the District Court, W.P.C.No.15866/09 - 2 - Thodupuzha. The appeal, after being entertained and taken on file, was dismissed as not maintainable. Propriety and correctness of the orders as above is challenged by the petitioner in the Writ Petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to the impugned orders, I find, an opportunity can be extended to the petitioner to have a decision on merits, subject to terms compensating the injury that is likely to be suffered by the respondent/plaintiff in reversing the ex parte decree passed as early as on 27.11.2001. Learned counsel for the respondent raised serious objections submitting that the dismissal of the petitions moved by the petitioner for setting aside the ex parte decree was on account of the deliberate laches and culpable negligence. Whatever that be, so far as practicable a decision has to be rendered on merits unless it is established that the conduct of the party is such which disentitled him from seeking discretionary relief for setting aside a decree which had been passed ex parte against him. Though there appears to be laches on the part of the petitioner W.P.C.No.15866/09 - 3 - in prosecuting the applications moved for restoration, but to shut the doors of the court against him to suffer an ex parte decree providing him no opportunity to have a decision on merits, it must be shown that his conduct was so contumacious and there was wilful laches on his part in prosecuting the petitions. I do not find any circumstances in the present case to hold the petitioner culpable of such conduct. All the same, the injury likely to be suffered by the respondent has to be taken due note of in setting aside the Ext.P3 judgment. So much so, on condition of the petitioner paying a cost of Rs.10,000/- to the respondent towards preparation of the injury likely to be suffered by him, the ex parte decree shall be set aside. Cost ordered shall be paid to the counsel appearing for the respondent before this court within one month from the date of this judgment. If cost is not paid within the stipulated time as directed above, the Writ Petition shall stand dismissed. It is also further directed that the property of the petitioner which had been proclaimed for sale pursuant to the execution taken on the basis of the ex parte decree shall be furnished as security by the petitioner towards satisfaction of the decree which may be passed in the suit after trial on the ex parte decree being set aside subject to payment of cost as indicated above. The execution W.P.C.No.15866/09 - 4 - proceedings from the ex parte decree shall be kept in abeyance for a period of 45 days from the date of this judgment. If cost is not paid and the Writ Petition is dismissed, the execution court shall proceed with the execution of the ex parte decree for realisation of the decree debt. The Writ Petition is disposed as indicated above. Post for compliance after one month. srd S.S. SATHEESACHANDRAN, JUDGE An amount of Rs.10,000/- (Rupees ten thousand only) ordered as cost vide judgment dated 27/07/2009 in W.P.(C)No.15866/2009 has been paid by the counsel for the petitioner to the counsel for the respondent as per memo c.f. 18567/09 dated 16/09/2009 recorded by order dated 16/09/2009. Sd/- Registrar (Judicial)