IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 FAO.No. 216 of 2009 --------------------- (AGAINST THE ORDER DATED 18.7.2009 IN IA. NO. 681/08 IN OS.2/2007 of SUB COURT, KASARAGOD .................... APPELLANT(S): PETITIONERS/DEFENDANTS: ----------------------------------------------------------------- 1. M.C.ABDUL KHADER, AGED 49 YEARS, S/O.MOHAMMED, HOTEL BUSINESS, RESIDING AT NELLIKUNNU OF KASARAGOD VILLAGE, TALUK AND DISTRICT, P.O.KASARAGOD. 2. ZAINAHA, AGED 37 YEARS, W/O.LATE P.A.ABDUL HAMID, RESIDING AT PALLAM, KASARAGOD VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENT(S)/RESPONDENT/ PLAINTIFF -------------------------------------------------------------- NORTH MALABAR GRAMIN BANK, KASARAGOD BRANCH THROUGH ITS MANAGER, KASARAGOD VILLAGE, POST, TALUK AND DISTRICT. ADV. SRI.DEVAN RAMACHANDRAN FOR R1 SRI.K.M.ANEESH FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- F.A.O. NO. 216 OF 2009 --------------------------------------------------- Dated this the 21st October, 2009 JUDGMENT K.M. Joseph, J. Appellants are the defendants in a Suit instituted by the respondent Bank for money. By the impugned order, the court below has rejected the Application filed by the appellants under Order 9 Rule 13 of the Code of Civil Procedure, to set aside the ex parte decree. The Suit was decreed ex parte on 14.8.2008. Apparently, the counsel for the appellants had reported no instructions. According to the appellants, the first appellant is conducting the case on behalf of the second appellant. The first appellant is suffering from heart ailment and was under the treatment of Dr. Keshava Bhat and he could not attend the office of the counsel, is his case. The court below has not accepted the said case. Ext. A1 is a letter issued by a FAO.216/09 2 medical practitioner regarding the medical prescriptions. The first appellant was examined as PW1. The second appellant is stated to be a pardanashin lady and illiterate. Of course, in cross-examination, the first appellant stated that he and the second appellant are residing separately and they are not related to each other. 2. We heard the learned counsel appearing for the appellants and also the learned counsel appearing on behalf of the respondent. 3. The Suit is of the year 2007. We take a liberal view of the matter and in view of the need for a decision on merits. However, it cannot be an unconditional order. Accordingly, we allow the Appeal and set aside the impugned order and the Application filed by the appellants shall stand allowed on condition that the appellants will pay a sum of Rs.3,000/= (Rupees Three Thousand) as costs to the respondent within one month from today and produce a Memo in this Court to that FAO.216/09 3 effect within one month from today. If the costs is not paid as aforesaid, the Appeal will stand dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge Appellant has paid Rs.3,000/= (Rupees three thousand only) towards cost to the counsel for the respondent in compliance of the direction contained in the judgment dated 21/10/2009 vide memo cf.7681/2009. Sd/= Registrar (Judicial)