IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 FAO.No. 302 of 2009() --------------------- I.A.NOS.806/08 & 807/08 IN OS.159/2005 of SUB COURT,KATTAPPANA .................... APPELLANT/DEFENDANT --------------------------------------- RAVEENDRAN, S/O. SIVARAMAN, AGED 56 YEARS, VELLAPPALLIL HOUSE, SPRING VALLEY KARA, PERIYAR VILLAGE, PEERMADE TALUK. ADD.2. VALSAMMA, AGED 48, W/O.LATE RAVEENDRAN, VELLAPALLIL HOUSE, SPRING VALLEY KARA, PERIYAR VILLAGE, PEERMADE TALUK. 3. ARUN, AGED 29, S/O.LATE RAVEENDRAN, VELLAPALLIL HOUSE, SPRING VALLEY KARA, PERIYAR VILLAGE, PEERMADE TALUK. 4. ARYA, AGED 25, D/O.LATE RAVEENDRAN. VELLAPALLIL HOUSE, SPRING VALLEY KARA, PERIYAR VILLAGE, PEERMADE TALUK. 5. ANUPRIYA, AGED 21, D/O.LATE RAVEENDRAN, VELLAPALLIL HOUSE, SPRING VALLEY KARA, PERIYAR VILLAGE, PEERMADE TALUK. (ADDL. APPELLANTS 2 TO 5 IMPLEADED VIDE ORDER IN THE JUDGMENT DATED 6.10.2010) BY ADV. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH RESPONDENT(S): --------------- JOSHY, S/O. VARKEY, AGED 50 YEARS, CHENGALATHUPARAMBIL HOUSE, SPRINGVALLEY KARA, PERIYAR VILLAGE, PEERMADE TALUK. ADV. SRI.GEORGE THOMAS (MEVADA) FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- F.A.O.No.302 OF 2009 & I.A.Nos.3598 & 3599 OF 2010 ------------------------------------------- Dated this the 6th day of October, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.We are satisfied on the basis of the affidavit on record that the right to sue as heirs of the deceased appellant survive in favour of his wife and children who are the petitioners in these petitions and there are sufficient cause to set aside the abatement in the appeal. These I.A.s are accordingly allowed. 2.The defendant in a suit for money is the appellant. On the ground that the decree was passed ex parte as he could not appear and contest the matter since he was involved in different criminal cases for offences punishable under Section 138 of the Negotiable Instruments Act and was also undergoing treatment in Kottayam District by residing with his sister, the defendant sought to have the ex parte decree set FAO.302/09 2 aside. The court below was not satisfied that the defendant had established that he had been sick. The court below took it that there was no medical evidence on record. We, however, notice that the defendant, the applicant in the application to set aside the ex parte decree had tendered evidence in support of his submission. Such oral evidence is sufficient to allow his application for condonation of delay and set aside the ex parte decree. We do not find anything in the impugned order which would indicate that the court below had proceeded totally disbelieving him though there could have been more corroborative evidence. With this, we also find that with the passage of time, after the institution of this FAO, the defendant appellant died and his wife and children are on record, now, as the legal representatives. 3.Taking the totality of the facts and circumstances into consideration, we are of the view that the application to set aside the ex parte decree and the application to condone the delay in applying to set aside the ex parte decree deserve a FAO.302/09 3 lenient approach and there are material to allow these applications. In the result, this appeal is allowed and the impugned orders are set aside. I.A.Nos.806/08 and 807/08 in O.S.No.159/05 of the Sub Court, Kattappana are allowed on condition that any order of attachment already issued by the court below would continue to be in force and that the additional appellants who are the legal representatives of the deceased appellant would not alienate any of the assets inherited as part of the estate of late Raveendran. The parties are directed to appear before the court below on 10.11.2010. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.11/10.