IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 WP(C).No. 10695 of 2008(W) -------------------------- CMA.62/2007 of DISTRICT COURT,KOZHIKODE IA 1685/06 & 1686/06 OF SUB COURT, KOYILANDI .................... PETITIONER: ------------ MAMMUKUTTY, AGED 59 YEARS, S/O. LATE KUTTIYALI, RESIDING AT ROSE GARDENS, FAROOK COLLEGE, CALICUT DISTRICT. BY ADV. SRI.C.A.NAVAS SRI.T.A.SHABEERALI SMT.SIMI SIVASANKAR RESPONDENTS: ------------- BALAKRISHNAMARAR, S/O. DAMODARAMARAR, VADAKKEPARAMBIL HOUSE, PANANGAD AMSOM, NIRMALLUR DESOM, KOYILANDI TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.10695 OF 2008 ------------------------------------------ Dated 31st March 2008 J U D G M E N T This petition is filed under Article 227 of Constitution of India to quash Ext.P5 order in C.M.A.62/2007 on the file of District court, Kozhikode confirming the common order passed by Sub court, Koyilandy in I.A.1685/2006 and 1686/2006. Respondent is the respondent in the appeal and petitions and plaintiff in O.S.95/1993. A decree for realisation of money was passed on 8/11/1994. Writ petitioner was directed to pay Rs.1,37,600/- with interest at 6% per annum on of Rs.80,000/- from the date of the suit till realisation. Petitioner filed I.A.1685/2006, under Section 5 of the Limitation Act to condone the delay of 11 years, 9 months and 17 days in preferring the application to set aside the exparte decree and I.A.1686/2006 under Rule 13 of Order IX of Code of Civil Procedure to set aside the decree and contending that he did not receive the summons and was unaware of the decree and came to know about the decree only WPC 10695/08 2 on receipt of the notice in the execution petition. Learned Sub Judge as per Ext.P3 order found that petitioner not only received summons but engaged a counsel and filed a written statement and subsequently remained ex-parte and the reason shown was not correct or sufficient and dismissed the petitions. Challenging the dismissal of the petitions petitioner filed Ext.P4 C.M.A before the District court, Kozhikode. Under Ext.P5 order the appeal was dismissed finding that case of the petitioner is false and he had received summons and engaged a counsel and filed a written statement and in such circumstances, neither the inordinate delay of more than 11 years can be condoned nor the ex-parte decree could be set aside. 2. Argument of the learned counsel for the petitioner is that petitioner is to pay interest for about 12 years, as decree holder did not execute the decree earlier and interest portion of the decree is to be quashed. When the petitioner contended before the courts below that he did not receive summons and so could not contest the suit, and he was unaware of the suit or decree, courts below on going through the WPC 10695/08 3 records found that petitioner had engaged a counsel after receipt of the summons and filed a written statement and the inordinate delay of more than 11 years cannot be condoned. The decree is sought to be set aside on the sole ground that there was no receipt of summons. Records established that summons was received by petitioner and he engaged a counsel and also filed a written statement. In such circumstances the petition filed under Rule 13 Order IX of Code of Civil Procedure could only be dismissed. In such circumstances, there is no illegality or irregularity in Exts.P3 and P5 orders warranting interference in exercise of extra ordinary powers of this court under Article 227 of Constitution of India. When the decree was not challenged by filing an appeal in exercise of the extra ordinary powers under Article 227 of Constitution of India, the rate of interest or the quantum of interest awarded under the decree cannot be interfered. Writ petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.