IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 WP(C).No. 11499 of 2008(R) -------------------------- AGAINST THE ORDER IN IA.2569/07 & 2570/07 IN OS.258/2003 of ADDL.SUB COURT, THALASSERY .................... PETITIONER: -------------------- THE FEDERAL BANK LIMITED, HEAD OFFICE AT ALUVA, BRANCH AT ULIKKAL, KANNUR DISTRICT, REPRESENTED BY ITS MANAGER, SEBASTIAN.P.V. BY ADV. SRI.A.ANTONY SMT.LEELAMMA ANTONY RESPONDENTS: -------------------------- 1. K.M.SANATHKUMAR, S/O.K.V.BALAN, KOODAKKAL MAVILA HOUSE, SREELAKSHMI, P.O.KEZHOOR, IRITTY, KANNUR DISTRICT. 2. K.M.RAMANI, W/O.K.V.BALAN, KOODAKKAL MAVILA HOUSE, SREELAKSHMI, P.O.KEZHOOR, IRITTY, KANNUR DISTRICT. 3. THOMASKUTTY MATHEW, S/O.MATHEW, PANTHAPALLY, ULIKKAL P.O., KANNUR DISTRICT. ADV. SRI.C.E.UNNIKRISHNAN FOR R1 SRI.SEBASTIAN DAVIS FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11499/2008 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT DTD. 17/12/2003 IN O.S.NO.258 OF 2003 OF SUB COURT, THALASSERY. EXT.P2: COPY OF DECREE DTD. 31/05/2004 IN .S.NO.258 OF 2003 OF SUB COURT, THALASSERY. EXT.P3: COPY OF MEMORANDUM OF C.R.P.NO.268 OF 2006 DTD. 24/05/2006. EXT.P4: COPY OF I.A.NO.1617 OF 2006 IN C.R.P.NO.268 OF 2006 DTD. 22/06/2006. EXT.P5: COPY OF MEMO DTD. 19/06/2006 IN C.R.P.NO.268 OF 2006 OF THIS HON'BLE COURT. EXT.P6: COPY OF ORDER DTD. 09/10/2006 IN C.R.P.NO.268 OF 2006 OF THIS HON'BLE COURT. EXT.P7: COPY OF I.A.NO.2569 OF 2007 IN O.S.NO.258 OF 2003 OF SUB COURT, THALASSERY DTD. 4/07/2007 AND ORDER DTD. 7/11/2007 PASSED BY THE SUB COURT, THALASSERY. EXT.P8: COPY OF I.A.NO.2570 OF 2007 IN O.S.NO.258 OF 2003 OF SUB COURT, THALASSERY DTD. 4/07/2007 AND ORDER DTD. 7/11/2007 PASSED BY THE SUB COURT, THALASSERY. EXT.P9: COPY OF I.A.NO.2658 OF 2007 IN O.S.NO.258 OF 2003 OF SUB COURT, THALASSERY DTD. 10/07/2007. EXT.P10: COPY OF THE COUNTER DTD. 14/08/2007 FILED BY THE PETITIONER HEREIN BEFORE THE SUB COURT, THALASSERY. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.11499 OF 2008 =========================== Dated this the 12th day of August, 2008 JUDGMENT Sub Court, Thalassery granted a decree in favour of the petitioner plaintiff Bank in O.S.258/2003 on 31.5.2004. It was an ex parte decree against respondents 1 and 2. In execution of the decree E.P.484/2004 was filed. The mortgaged property was sold in court auction and was purchased by the third respondent. Sale was confirmed. Before the confirmation of sale respondents defendants filed C.R.P. 268/2006 challenging the order passed by the executing court for sale. Under Ext.P6 judgment dated 9.10.2006 revision petition was dismissed directing the executing court to dispose the application proposed to be filed by respondents under Rule 89 of Order XX1 of Code of Civil Procedure to set aside the sale on deposit of the entire decree debt interest and cost. First respondent did not file such an W.P.(C)11499/2008 2 application and instead filed I.A.2570/2007 a petition under Rule 13 of Order IX of Code of Civil Procedure to set aside the ex parte decree and I.A.2569/2007 a petition under section 5 of the Limitation Act to condone the delay of 1128 days in filing the petition to set aside the ex parte decree. Petitioner filed objection to the applications. Learned Sub Judge as per order dated 7.11.2007 allowed the application to condone the delay on payment of cost of Rs.1000/-. On the same day I.A.2570/2007 was also allowed on payment of cost of Rs.2000/-. The petitions were posted for payment of cost to 18.11.2000 and on that day as cost was paid petitions were allowed. This petition is filed under Article 227 of the Constitution of India challenging the orders passed in I.A.2569/2007 and I.A.2570/2007. 2. Learned counsel appearing for petitioner and respondents were heard. 3. There is force in the submission of the learned counsel appearing for petitioner that W.P.(C)11499/2008 3 learned Sub Judge did not consider the applications in the proper perspective and instead allowed the petitions without even considering the objections raised by the petitioner. When a petition is filed under section 5 of the Limitation Act to condone the delay of more than 1128 days and the grounds stated by first respondent were denied by the petitioner, learned Sub Judge is bound to consider the question whether there is sufficient cause to condone the delay. Learned Sub Judge did not consider that aspect at all. On the other hand, it is seen from the order passed in I.A.2569/2007 that it was allowed as follows:- “Heard. The petitioner was abroad during the pendency of trial. He did not get an opportunity to contest the matter. Hence I am of the opinion that the IA can be allowed on cost. Hence IA allowed. Payment of cost W.P.(C)11499/2008 4 Rs.1000/-. The question whether there was sufficient cause for the delay was not considered at all. In fact the fact that first respondent had approached this court in C.R.P.268/2006 and that was dismissed on 9.10.2006 and the petition to condone the delay was filed only on 4.7.2007 whether there is any cause for condoning the delay at least from 9.10.2006 to 4.7.2007 were not considered by the learned Sub Judge. Similarly I.A.2570/2007 is seen allowed as follows:- “The suit was decreed after taking steps for summons of defendant. Since he was in Gulf I am of the opinion that an opportunity is to be given to the petitioner to contest the suit. Ex parte decree passed against the petitioner is set aside on payment of cost of Rs.2000/-.” Learned Sub Judge has not considered the grounds W.P.(C)11499/2008 5 stated in the application to set aside the ex parte decree in the light of the objection raised by petitioner. 4. In such circumstance, Exts.P7 and P8 orders are quashed. Learned Sub Judge is directed to consider I.A.2569/2007 and I.A.2570/2007 afresh and dispose the same in accordance with law after hearing the parties. Learned counsel for third respondent pointed out that the property sold in execution belongs to second respondent and even if the ex parte decree as against petitioner is to be set aside, it will not affect the sale. Learned counsel appearing for petitioner submitted that under Ext.P9 order, learned Sub Judge stayed the execution. It is seen that as per order dated 7.11.2007 learned Sub Judge stayed the execution petition for the reason that the ex parte decree is set aside. Evidently it is because of Ext.P7 and P8 orders. Without those orders being set aside, the order passed on 7.11.2007 will not stand. Even otherwise if the decree is already W.P.(C)11499/2008 6 set aside there is no necessity for an order of stay. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006