IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 FAO.No. 285 of 2010 ---------------------------- AGAINST THE ORDER DATED 09/06/2010 IN IA 4754/2009 IN OS.170/2007 of PRINCIPAL SUB COURT, N.PARAVUR .................... APPELLANT(S) /PETITIONER/DEFENDANT: ------------------------------------------------------------ P.C.CHACKO @ SHAJI, PROPRIETOR, RR TOURS & TRAVELS, R/AT.PUTHENPURAKKAL HOUSE, COLONY PADY, CHOONDY, ALUVA. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT(S)/ RESPONDENT/PLAINTIFF: -------------------------------------------------------------- THE FEDERAL BANK LTD., BANK JUNCTION BRANCH, ALUVA, REP. BY ITS BRANCH MANAGER. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P.Q.BARKATH ALI, JJ. ------------------------------------------------------ F.A.O. No.285 of 2010 ---------------------------------------------- Dated, this the 16th day of September, 2010 J U D G M E N T Thottathil B.Radhakrishnan, J. Appellant faces a decree for realisation of money. He was set exparte on 15.6.2007 and the suit was decreed exparte on 23.6.2007. He filed application to set aside that decree with an application to condone delay of 800 days. He stated in his application that he could not intimate his counsel in time as he was laid up. He also has a pleading in his appeal memo that, though he wanted his counsel to file an application to set aside the exparte decree, the counsel filed objections to the execution proceedings. Going by the practice and procedure and the provisions of the Code of Civil Procedure and the Civil Rules of Practice, the counsel cannot by himself file an application to set aside the exparte decree because it has to be filed along with an affidavit of the party. Notwithstanding that the petitioner/defendant did not produce any medical evidence or certificate in support of his claim that he has been sick and the delay of 800 days has to be condoned, we are satisfied that the court below has properly appreciated the entire facts and factors and has rightly FAO 285/2010 -2- dismissed the application to condone the delay and consequently the application to set aside the exparte decree. This appeal fails and the same is accordingly dismissed. (THOTTATHIL B.RADHAKRISHNAN) JUDGE. (P.Q.BARKATH ALI) JUDGE. MS