IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 FAO.No. 300 of 2011 ---------------------------- AGAINST THE ORDER DATED 31/08/2011 IN IA.1928/2010 IN OS.349/2009 of SUB COURT,ATTINGAL .................... APPELLANT (S):PETITIONER: ----------------------------------------- ANITHA, D/O.THANKAM, DEVI NIVAS, PALACE ROAD, ATTINGAL, THIRUVANANTHAPURAM DISTRICT BY ADV. SRI.M.R.RAJESH SRI.K.M.ALEXANDER RESPONDENT(S): COUNTER PETITIONER: ------------------------------------------------------------ NIZARUDEEN, S/O.MUHAMMED KASSIM, ANEESA MANZIL, CHEMPAKAMANGALAM, KORANI P.O., CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT-695 001. BY ADV. SRI.J.JAYAKUMAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/11/2011, ALONG WITH FAO NO. 309 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- F.A.O.No.300 of 2011 & F.A.O No.309 of 2011 ----------------------------------------- Dated, this the 11th day of November, 2011 J U D G M E N T K.M.Joseph, J. Being connected, these appeals are disposed of by a common judgment. 2. Appellant in F.A.O.No.300/2011 is the Ist defendant in O.S.349/2009. Appellant in F.A.O.309/2011 is the 2nd defendant in the very same suit. The said suit came to be decreed exparte. Appellants filed application to set aside the exparte decree. As far as the application filed by the appellant in F.A.O 300/2011 is concerned, it is rejected stating that it is belated. As far as the application filed by the appellant in F.A.O.309/2011 is concerned, it is dismissed stating that admittedly there is a delay of 139 days in filing the I.A and there is no petition to condone the delay. It is further stated that the court fee stamps of Rs.2 alone is FAO 300, 309/2011 -2- affixed in the petition and the reasons stated in the I.A for condonation of delay are not convincing. 3. We heard the learned counsel for the appellants and learned counsel for the respondents. Learned counsel for the appellants would point out that as far as the petition filed by the appellant in F.A.O. 300/2011 is concerned, in fact, there is no delay. It is pointed out that application is filed on the 17th day of passing of the exparte decree and the order is patently unsustainable. As far as the petition filed by the appellant in F.A.O.309 of 2011 is concerned, no doubt, there was a delay. According to the learned counsel for the appellant there was reasons stated as the appellant was abroad. We are of the view that the impugned orders cannot be maintained and they are to be interfered with. As far as the application filed by the appellant in F.A.O.300/2011 is concerned, we notice that there is no delay and the order is patently unsustainable. As far as FAO 300, 309/2011 -3- the application filed by the appellant in F.A.O.309/2011 is concerned, there is explanation for the delay, according to the appellant he was abroad. We feel that in the interest of justice and for an adjudicated decision both the impugned orders should be set aside. Accordingly, we allow the appeals and set aside the impugned orders and the applications filed by the appellants stand allowed. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS