IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 5735 of 2009(O) ------------------------- CMA.80/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.1565/2002 of MUNSIFF COURT, ERNAKULAM .................... PETITIONER(S): --------------- SKARIA, AGED 67 YEARS, S/O. ULAHANNAN, VARAKUKALIYIL, B & B BHAVAN, FRIENDS COLONY, THIRUVANKULAM. BY ADV. SRI.BIJU .C. ABRAHAM RESPONDENT(S): --------------- RAMACHANDRA MENON, S/O. RAMAKRISHNAN NAIR, KRISHNA VILAS, BRIDGE ROAD ALUVA KARA, ALUVA WEST VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.5735 of 2009 --------------------------------------------- Dated this the 24th day of February, 2009 JUDGMENT The petitioner, who is the defendant in O.S.No.1565/02 on the file of the court of the Munsiff of Ernakulam, was declared ex-parte and an ex-parte decree was passed on 11.7.2003. In the year 2006, the petitioner filed I.A.No.6476/06 under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex-parte decree. In 2007, he filed I.A.No.2143/07 to condone the delay in filing the application to set aside the ex-parte decree. The trial court dismissed the applications by the order dated 6th March 2007. The petitioner appealed as C.M.A.No.80/07 on the file of the District Court, Ernakulam. The lower appellate court dismissed the C.M.Appeal. The Writ Petition is filed challenging the order and judgment passed by the courts below. 2. The case of the petitioner is that he was not served with summons in the suit and therefore, he could not appear in the suit and contest the case. The application was opposed by the respondent. The parties did not adduce any oral evidence in the application. WPC No.5735/2009 2 3. In the suit, it would appear that the summons was received by one Elias Varghese, who is the relative of the petitioner. The petitioner appeared before the court on 20.3.2003 and prayed for time to file objection to the Commissioner’s report and to file written statement. The case was posted to 24.6.2003. Though three months’ time was granted to file the written statement, the petitioner did not file written statement. The petitioner was set ex-parte and the case was posted for ex-parte evidence to 29.6.2003 and thereafter to 11.7.2003. The petitioner did not appear. The ex-parte decree was passed on 11.7.2003. 4. Execution was levied by the respondent. The petitioner received notice in the Execution Petition on 20.12.2004. He appeared in the Execution Petition and filed objection on 5.8.2005. Therefore, it is clear that the petitioner was aware of the judgment at least on 20.12.2004. But, he filed the application to set aside the ex-parte decree only on 22.7.2006 and filed the application for condonation of delay only on 5.3.2007. No evidence was adduced by the petitioner explaining the delay and the circumstances in which he was WPC No.5735/2009 3 prevented from appearing before court in the suit. The courts below held that the petitioner has not made out any sufficient cause for not appearing before the court when the suit was called for hearing and accordingly, the application to set aside the ex-parte decree was dismissed and the appeal there from was also dismissed. 5. I do not think that the courts below committed any error. There is no case for the petitioner that he did not appear in the execution proceedings or that he did not file any objections. More than 1½ years later, he filed the application to set aside the ex-parte decree. There was no justification for doing so. The averments in the affidavit accompanying the application for setting aside the ex-parte decree and the averments in the affidavit in support of the application for condonation of delay were not proved by any acceptable evidence. There is no merit in the Writ Petition. The Writ Petition is accordingly dismissed. K.T.SANKARAN, JUDGE csl