IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 FAO.No. 94 of 2008() -------------------- AGAINST THE ORDER IN IA 303/2008 IN OS.453/2000 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER/PLAINTIFF: --------------------------------------------------- PUNJAB NATIONAL BANK, PRIYADHARSINI ROAD, PALAKKAD, REPRESENTED BY ITS SENIOR MANAGER, C.SREEKUMAR. BY ADV. SRI.C.AJITH KUMAR RESPONDENT(S): COUNTER PETITIONERS/PLAINTIFF: --------------------------------------------------------------------------- 1. M/S. S.A. TRADERS, PHARMACEUTICALS DISTRIBUTORS, 24/1269-A, PALLI STREET, PALAKKAD. 2. C.S. VIJAYAN, S/O. SUBRAMANIA IYER, ATTUPURAM, EDATHARA, PALAKKAD. 3. C.S. ANANTHA RAMAN, S/O. SUBRAMANIA IYER, ATTUPURAM, EDATHARA,PALAKKAD 4. K. MADHAVAN, S/O. LATE M.KUTTIKRISHNAN NAIR, MINI NIVAS, AVITHIPADAM, PALAKKAD. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 94 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2009. JUDGMENT Raman, J, This is an appeal against an order dismissing the petition to set aside the abatement on the ground that it is highly belated. But according to the petitioner there is no abatement since defendants 2 and 3 are also the legal representatives of the deceased fifth defendant. He relied on the decision of this court reported in Kuruvilla v. Dy. Collector (2007(2) K.L.T. 410). Further, according to him, he also filed a petition for condonation of delay. But still this petition was dismissed on the ground that this is belated. In any case, whether there is any abatement or not is a question which was not considered by the court, because the petitioner did not address the court with relevant facts. Since the other defendants are already continuing on records, it is only appropriate that an opportunity be given to the petitioner to F.A.O. 94/2008. 2 raise such contentions before the court below. Hence we set aside this order and remit the matter for fresh consideration in accordance with law and after hearing the parties. The appeal is allowed as above. P.R. Raman, Judge P. Bhavadasan, Judge sb.