IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 CRP.No. 351 of 2011() --------------------- CMA.111/2009 of II ADDL. DISTRICT COURT, KOLLAM I.A.NO.293/2009 & I.A.NO.294/2009 IN OS.476/2004 of ADDL.MUNSIFF'S COURT, KOLLAM .................... PETITIONER(S): APPELLANT-PETITIONER-3RD DEFENDANT: ------------------------------------------------------------------------------------------ P.S.PRAMOD, PREMEELA BHAVAN, ANCHALUMMOODU, MURUNTHELCHERRY, THRIKADAVOOR VILLAGE, KOLLAM. BY ADVS. SRI.S.SANTHOSH KUMAR, SMT.P.LISSY JOSE. RESPONDENT(S): RESPONDENTS-RESPONDENTS-PLAINTIFF & 1ST DEFENDANT: ---------------------------------------------------------------- 1. B.GOPALAKRISHNA PILLAI, S/O.BALAKRISHNA PILLAI, VIPANCHIKA, PUNNATHALACHERRY, KOLLAM WEST VILLAGE-691 001. 2. HARSHAKUMAR, S/O.KUMARAN, THEKKEDATHU VEEDU, EZHUKONCHERRY, EZHUKON VILLAGE, KOTTARAKKARA, KOLLAM-691 506. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.351 of 2011 --------------------------------------- Dated this 02nd day of August, 2011 ORDER Third defendant in O.S.No.476 of 2004 of the Court of learned Additional Munsiff, Kollam is the petitioner before me challenging the judgment of learned Second Additional District Judge, Kollam in C.M.A.No.111 of 2009 confirming dismissal of I.A.Nos.293 and 294 of 2009, to set aside the ex parte decree dated 30.11.2005 and to condone the delay of 1141 days in filing the said application. 2. First respondent filed a suit for recovery of `.25,000/- given as fixed deposit. He alleged that fixed deposit receipts were signed by the petitioner on behalf of the first defendant, a firm run by the petitioner and second respondent/second defendant. Petitioner was set ex parte on 19.07.2004 and that was followed by an ex parte decree on 30.11.2005. Petitioner filed I.A.Nos.293 and 294 of 2009 on 15.01.2009. Learned Munsiff dismissed the applications as being without substance or bonafides and learned Additional District Judge concurred. Learned counsel for petitioner contends that petitioner has serious contentions to be raised in the suit in that the (alleged) fixed deposit was not with C.R.P.No.351 of 2011 -: 2 :- the first defendant but, with the Kumar Mutual Funds Limited while the suit was filed against first defendant, Kumar Banks which is an entirely different legal entity. Petitioner claimed that he is not a partner of either of the said concerns but, only acted as Manager of Kumar Mutual Funds Limited. 3. Now the question is whether request to set aside the ex parte decree has to be entertained. In the affidavit in support of the applications petitioner states that he had entrusted the case with Adv. Perumon S. Raju, he was on business tour and the counsel did not inform him about the case. Learned Munsiff observed that it is not stated during which period petitioner was on business tour. Learned Munsiff also observed that it is difficult to believe the version of petitioner that his having entrusted the case with the advocate in the year 2007, he did not make any enquiry about the case until 02.01.2009 when petitioner claims to have learned about the ex parte decree when the warrant of arrest was sought to be executed against him. Learned Additional District Judge has gone a step further and found from the records that as against the ex parte order dated 19.07.2004 petitioner had filed an application (I.A.No.3705 of 2004) ie. before passing of the ex parte decree, to set aside the ex parte order, that application was preferred by one Adv.Sri.P.S Pradeep but, without any vakalath, nor had the said advocate signed the C.R.P.No.351 of 2011 -: 3 :- petition. Instead the affidavit of petitioner and the petition were seen signed by the petitioner. That means, petitioner was aware atleast in 2004 that he was set ex parte on 19.07.2004. But his application to set aside the ex parte decree comes in 2009. Petitioner has no satisfactory explanation for the above. I am not impressed by the version of petitioner that he learned about the ex parte decree only in January, 2009 when the warrant of arrest was issued against him. I do not find any bonafides, merit or substance in that plea. Learned Additional District Judge suspected some foul play in the matter and that is why petitioner was made liable to pay `.2,500/- by way of cost. I do not find reason to interfere either with the judgment dismissing C.M.A.No.111 of 2009 or the direction to pay costs. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-