IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 FAO.No. 166 of 2010() --------------------- AGAINST THE ORDER DATED 05/02/2010 IN IA.1724/2009 & I.A.1725/2009 IN OS.189/2008 OF PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/ DEFENDANT ------------------------------------- ABDUL KALAM, S/O.SULAIMAN KUNJU, VALIYA KOTTAVILA VEEDU, PALLICKAL DESOM, PALLICKAL VILLAGE. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT/PLAINTIFF ----------------------------------- UBAIDULLAH, S/O.SALAHUDEEN, KOCHANDUPARA, THEKKUMBHAGAM CHERY, KOTTAPPURAM, KOLLAM. ADV. SMT.PRABHA R.MENON FOR R1 SRI.M.KRISHNAKUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.166 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of October, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The defendant in a suit for recovery of money is the appellant. He challenges an order by which the court below has refused to set aside an ex parte decree against him and also to condone delay in applying to set aside the ex parte decree. 2.While the learned counsel for the respondent- plaintiff points out that the defendant was set ex parte on an earlier round also, we would stand advised that it is not necessary for us to go into that, since the question in hand is as to whether there was sufficient cause demonstrated FAO166/10 -: 2 :- for the non-appearance of the defendant on the date in relation to which the impugned proceedings are issued. 3.We have considered the materials placed in support of the application before the court below. The defendant has filed an affidavit before the court below saying that he was unwell for nearly three months. He has produced a medical certificate which says that a physician had advised rest for nearly three months on account of rheumatic arthritis. While the learned counsel for the appellant says that his client was hospitalized, we do not find that the medical certificate supports that submission. Yet, we are inclined to think that the defendant, having shown that he was sick, had satisfactorily explained his absence on the relevant date and also the delay in applying to set aside the ex parte decree. The ex parte decree ought to have been set aside condoning the delay in applying FAO166/10 -: 3 :- for such relief. However, this has necessarily to be only on terms. In the result, this appeal is allowed setting aside the impugned orders and allowing the application to set aside the ex parte decree and also the application to condone the delay in filing the same. Resultantly, the ex parte decree will stand set aside. All these will be on condition that the appellant pays the respondent through his counsel appearing before this Court an amount of Rs.5,000/- as costs within three weeks and furnishes security to the satisfaction of the court below for the plaint claim within a period of one month. Since counsel on both sides state that an item of property belonging to the defendant is under attachment, it would be sufficient that he furnishes that item of property as security, subject of course to the satisfaction of the court below. It is further ordered that the defendant shall file written FAO166/10 -: 4 :- statement within one month from today to enable the court below to further proceed with the suit in accordance with law, unless already filed. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- P.Bhavadasan, Judge. Sha/ 0610 Certified that appellant has paid Rs.5,000/- (Rupees Five Thousand only) as cost to the counsel for the respondent in compliance of the direction contained in the judgment dated 04/10/2010 in F.A.O.166/2010 vide memo c.f.7019/2010. Sd/- Registrar(Judicial)