IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 FAO.No. 173 of 2008() ----------------------------- (I.A.4000/07 IN OS 30/07 OF PRINCIPAL SUB COUT, NORTH PARAVUR) APPELLANT (S):/PETITIONER/DEFENDANT: -------------------------------------------------------------- T.P.ANTONY, AGED 74 YEARS, S/O.PAILY, THEKINETH HOUSE, PAZHANGANADU, KIZHAKKAMBALAM P.O. BY ADV. SRI.M.RAJASEKHARAN NAYAR RESPONDENT(S): RESPONDENT/PLAINTIFF: -------------------------------------------------------------- INDIAN BANK, RAILWAY STATION ROAD, ALUVA BRANCH, REPRESENTED BY ITS SENIOR MANAGER. BY ADV. SRI.S.EASWARAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 31/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.No.173 of 2008 ----------------------------------------- Dated, this the 31st day of August, 2011 J U D G M E N T K.M.Joseph, J. This appeal is directed against the order of the Principal Sub Court, North Paravur in I.A.No.4000/2007 in O.S.30/2007 rejecting the application filed by the appellant to set aside the exparte decree. Following is the order passed by the Sub Court. “Objection filed. Heard the respondent. There is delay in filing the application. No application u/s.5 of L.A is filed. Moreover it is clear from Para 5 and 7 of the objection that the officer of the court affixed the summons in the presence of his wife, when she refused to accept the summons on 24.1.07. Therefore it is clear that the petitioner had knowledge regarding the service of summons. Under this circumstance the I.A is dismissed with cost.” 2. We heard the learned counsel for the appellant and learned counsel for the respondent Bank. The matter was referred to Adalath. Thereafter, it is also not in dispute that a sum of Rs.3.5 lakhs has already been paid. According to the appellant, FAO 173/2008 -2- Rs.1 lakh remains to be paid. According the decree holder Rs.3.7 lakhs remains to be paid. We, however notice that the appellant has not even filed an application to condone the delay. In the interest of justice we feel that an opportunity should be granted to the appellant. Accordingly, we set aside the impugned order. It is open to the appellant to file affidavit seeking to condone the delay explaining the delay in filing the application. The parties will appear before the Sub Court on 27.9.2011. The Principal Sub Court, North Paravur will take a decision in the matter within one month from 27.9.2011. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS