IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 OP(C).No. 270 of 2011(O) ------------------------ AGAINST THE ORDER DATED 22/06/2010 IN IA.22/2008 IN OS.118/1998 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER : ------------------- NAZAR, AGED 46, S/O. LATE KATTILAPEEDIKAYIL IBRAHIM, EDATHIRUTHY VILLAGE AND DESOM, KODUNGALLUR TALUK. BY ADV. SRI.K.I.ABDUL RASHEED SRI.K.A.SHAMSUDEEN RESPONDENT(S): --------------- 1. SUBRAMANIYAN, S/O. KOZHISSERY RAMAN, KAIPAMANGALAM VILLAGE AND DESOM, KODUNGALLUR TALUK, PIN-680 681. 2. DHARMADAS, S/O. KARAPARAMBIL SANKARAN, EDATHIRUTHY VILLAGE AND DESOM, KODUNGALLUR TALUK, PIN-680 703. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- O.P.(C) No.270 of 2011 O ------------------------------------- Dated this the 20th day of January, 2011 J U D G M E N T The first respondent filed O.S.No.118 of 1998 on the file of the court of the Subordinate Judge of Irinjalakuda against the second respondent and the petitioner for declaring that Ext.A1 is a sham document and that it was not acted upon and the plaintiff is the owner of the plaint schedule property. A permanent prohibitory injunction was also sought for. The suit was decreed ex-parte on 7th September, 1999. The petitioner filed I.A.No.3896 of 2001 under Order 9 Rule 13 and I.A.No.3897 of 2001 to condone the delay in filing the application to set aside the ex-parte decree. It is submitted by the counsel that there was a delay of 767 days in filing the application to set aside the ex-parte decree. 2. I.A.No.3896 of 2001 and 3897 of 2001 were O.P.(C) No.270/2011 2 dismissed for default by the order dated 8th October, 2002. The counsel for the petitioner as well as the petitioner were absent on the day on which the applications were taken up for hearing. 3. The petitioner filed I.A.Nos.19 of 2008, 21 of 2008 and 22 of 2008 respectively. I.A.No.19 of 2008 was filed to condone the delay of 6 years and 85 days in filing the application to restore I.A.Nos.3896 and 3897 of 2001. I.A.No.21 of 2008 was filed to restore I.A.No.3897 of 2001 and I.A.No.22 of 2008 was filed to restore I.A.No.3896 of 2001. 4. Before the court below, the power of attorney holder of the petitioner was examined as PW1. The court below considered the averments in the affidavit and also the evidence of PW1 and held that no grounds are made out for condoning the long delay of 6 years and 85 days in filing the application for restoration of the application to set aside the ex-parte decree. The application for setting aside the ex-parte decree itself O.P.(C) No.270/2011 3 was filed after the considerable period of delay. Still that application as well as the delay condonation petition were dismissed for default in the year 2002. The petitioner has approached the court for restoration of those applications in 2008. The reason stated for the delay is that the counsel engaged by the petitioner made him believe that the application for setting aside the ex-parte decree was pending. It is very hard to believe the story put forward by the petitioner. The court below was not inclined to accept that story. There is no jurisdictional error or error of law warranting interference under Article 227 of the Constitution of India. The Original Petition is dismissed. K.T.SANKARAN JUDGE csl