IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 FAO.No. 164 of 2008() --------------------- {IN IA 10 & 11/2007 IN OS.304/2003 of PRL.SUB COURT, KOZHIKODE} .................... APPELLANT(S)/PETITIONER/DEFENDANT: ------------------------------------------------ A.N.GOPINATHAN, S/O.SEKHARAN, RESIDING AT POOKKOTH HOUSE, P.O.NADUVATHUR, KEEZHARIYUR AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S)RESPONDENTS/AUCTION PURCHASER: ------------------------------------------------------------- 1. K.RAJAGOPALAN NAIR, S/O.KUNJIKKANNAN NAIR, KUTTIYIL HOUSE, VIYYUR AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. M.RAJIV KUMAR, S/O.BALAKRISHNAN NAIR, ARCHANA APARTMENTS, ERNAJIPALAM, KOZHIKODE DISTRICT. ADV. SRI.B.KRISHNAN FOR R1 SRI.R.PARTHASARATHY SRI.R.K.MURALEEDHARAN FOR R2 SRI.JOBY JACOB PULICKEKUDY FOR ADDL R3 SRI.ANIL GEORGE FOR ADDL R3 SRI.K.S.SUMEESH FOR ADDL R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.No. 164 of 2008 :: :: ORDER ON I.A.No.4094/10 IN FAO.No. 164 of 2008 DISMISSED. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) 30.06.2010. JUDGE sk/- //true copy// P.S. To Judge. THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- F.A.O.No.164 of 2008 --------------------------------------- Dated this the 30th day of June, 2011 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. This appeal is against an order by which the court below refused to set aside an ex parte decree, and to condone the delay in filing that application. The defendant is before us. 2. The plaintiff sued for recovery of principal amount of Rs.3 lakhs with interest including that accrued thereon till the date of suit. The court below passed an ex parte decree on 12.8.2004. This was sought to be set aside. 3. Before proceeding further, we may note,that the suit was filed before the Sub Court, Quilandy. The defendant entered appearance and filed written F.A.O.No.164 of 2008 :: 2 :: statement. Thereafter, on a transfer proceedings, it was transferred to Sub Court, Kozhikode. 4. It appears that following the decree, which was passed ex parte, 1 Acre 69½ Cents of garden land with a double storied building was sold in execution on 31.5.2006. 5. Saying that he had has been sick with back pain for about two years and was unaware of the proceedings before the Sub Court, Kozhikode and had obtained knowledge of the decree only when somebody visited the property on 25.7.2006 after the sale, the defendant moved the executing court when he found that he was declared ex parte in the execution proceedings. He, thereafter, filed I.A.Nos.10 and 11 of 2007 on the trial side seeking that the ex parte decree be set aside after condoning the delay in filing such applications. Those F.A.O.No.164 of 2008 :: 3 :: applications on the execution side stood allowed on 12.1.2007, however without notice to the plaintiff. Yet, it appears that on 4.7.2007, the auction purchaser, a third party, took delivery of the property. It was thereafter that, on the application of the defendant, the aforesaid order passed on 12.01.2007 on I.A.Nos.10 and 11 of 2007 was recalled and those applications were re-listed for consideration. 6. By the order impugned in this appeal, I.A.Nos.10 and 11 of 2007 stand dismissed. 7. The defendant had tendered evidence as PW.1 in support of his applications. He deposed before court that he was sick and was not aware of the transfer proceedings leading to the transfer of the case to the Sub Court, Kozhikode and it was, therefore, that he could not appear through an advocate, though he had entered F.A.O.No.164 of 2008 :: 4 :: appearance and filed written statement while the suit was pending before the Sub Court, Quilandy. 8. In opposition, the plaintiff summoned and examined the advocate who was shown to have appeared for the defendant before the District Court in connection with the transfer petition to prove the vakalath nama. The defendant still stood to assert that the said vakalath nama did not contain his signature and the matter should be referred to expert opinion. That application does not appear to have found favour with the court below. 9. On the totality of the materials on record, the oral evidence of the defendant before court stood. There was no contra evidence from plaintiff. We are inclined to think that there would be no reason for the defendant's non-appearance in the Sub Court, Kozhikode after the transfer of the suit, having regard to the fact that he had F.A.O.No.164 of 2008 :: 5 :: already filed a written statement and was contesting the case. 10. With this, we also see that a large extent of 1 Acre and 69½ Cents with a residential building is made subject of an execution proceedings on the basis of the ex parte decree. Further is the fact that the delivery proceedings was totally without jurisdiction inasmuch as rightly or wrongly, the decree stood set aside on 12.1.2007 as per the order on I.A.Nos.10 and 11 of 2007. The delivery was effected after the execution court was notified of the order dated 12.1.2007. 11. With the aforesaid, we are inclined to think that ends of justice can be served only by letting the parties to have a fulfledged trial. We are satisfied that the reasons offered by the appellant for his non- appearance before the trial court on 12.8.2004 and for the F.A.O.No.164 of 2008 :: 6 :: delay in applying to set aside the ex parte decree constitute sufficient cause within the provisions of Section 5 of the Limitation Act and Order IX Rule 13 of the Code of Civil Procedure. 12. In the context, it is pointed out that the auction purchaser had thereafter sold the property to a couple of other persons. Such proceedings have been made immediately before or after the institution of this first appeal. Under such circumstances, we are inclined to think that the auction purchaser and any such transferee can be treated as a person interested in the suit and therefore, proper parties, though not necessary parties, to the litigation. 13. In the result, we allow this appeal and consequently I.A.Nos.10 and 11 of 2007 and set aside the decree dated 12.8.2004 on the following conditions: F.A.O.No.164 of 2008 :: 7 :: (i) The appellant will pay the 1st respondent/decree holder an amount of Rs.25,000/- as costs, payable to his counsel appearing before this court, within a period of three weeks from today. (ii) The appellant will deposit before the court below an amount of Rs.6 lakhs within a period of six weeks from now. 14. On the aforesaid conditions being satisfied, the impugned decree will stand set aside and the parties will go for trial. If either of the condition is not satisfied, this FAO will stand dismissed automatically. 15. In the event of the parties going for trial in terms of this judgment, following the satisfaction of payment of costs, the Official Receiver, Quilandy will be the Receiver for the property, however that, any party in possession of the residential building shall not be dispossessed and would be accountable to the Official F.A.O.No.164 of 2008 :: 8 :: Receiver on such terms as the court below thinks. Consequential orders and directions of the Official Receiver, including formal order of appointment and other incidental directions are to be issued by the trial court. 16. Notwithstanding all the aforesaid, we leave it open to the parties to settle the disputes within the period of three weeks. We make this clarification having regard to the intervention of certain persons. To ascertain the payment of costs, post on 19.07.2011. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy// P.S. to Judge.