IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 FAO.No. 109 of 2008() ----------------------------- AGAINST THE ORDER DATED 31/01/2008 IN IA.NO.555/2006 IN OS.67/2001 of SUB COURT, SULTHAN BATHERY .................... APPELLANTS/PETITIONERS/DEFENDANTS : -------------------------------------------------------------- 1. M/S. SATCON, PULIYARMALA KALPETTA NORTH P.O., REPRESENTED BY ITS PROPRIETRESS PUSHPALATHA, SREERAGAM, PULIYARMALA KALPETTA NORTH P.O., VYTHIRI TALUK, WAYAND DISTRICT 2. P.MADHAVAN, SREERAGAM BUILDING PULIYARMALA, KALPETTA NORTH P.O., VYTHIRI TALUK, WAYAND DISTRICT BY ADV. SRI.HARISH R.MENON SMT.SINDHU T. RESPONDENT/RESPONDENT/PLAINTIFF : ----------------------------------------------------------- THE INDIAN OVERSEAS BANK WITH ITS HEAD OFFICE AT ANNASALAI AND BRANCHES AMONGST OTHER PLACES AT KALPETTA, KALPETTA AMSOM AND DESOM OF VYTHIRI TALUK, WAYANAD DISTRICT THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: pac M.N.KRISHNAN, J ===================== FAO No.109 OF 2008 ===================== Dated this the 15th day of July 2008 JUDGMENT This appeal is preferred against the order of the Sub Judge, Sulthanbathery in I.A.Nos.555 & 556 of 2006 in O.S.No.67 of 2001. The first application is one for condoning the delay of one year and 8 months to file the application to set aside the ex parte decree and the second petition is one to set aside the ex parte decree. In the lower court, PW1 was examined and Ext.A1 was marked. The Sub Judge did not find in favour of the appellants and dismissed those applications. It is against that decision the present appeal is filed. 2. Heard the learned counsel for the appellants. He strongly contends before me that the court below should have exercised its judicial jurisdiction as there were sufficient reasons for condoning the delay. It can be seen that the suit is one for realisation of the amount due to a bank from the defendants in the suit. It is submitted that the husband was laid up due to chronic rheumatoid arthritis from 2.6.1999 to 4.1.2006 and his wife was looking after him and therefore they entrusted their son to conduct the case FAO 109/2008 -:2:- on their behalf and they were under the impression that the son will do so. But to their dismay, the son did not attend the court at all and the suit happened to be decreed ex parte. It has to be remembered that both of them were not laid up and the period of treatment is from 2.6.1999 to 4.1.2006. A mere medical certificate will not be a substitute for a valid proof. There were innumerable number of methods to find out what has happened to the fate of the case. So, without contacting the Lawyer or doing anything an application is filed stating that the husband was laid up with arthritis. The suit was of the year 2001 and even if the plea is admitted that even prior to the institution of the suit, he had been suffering from arthritis. It has to be stated that this is a classical case where there is gross negligence and grave misconduct in prosecuting the matter. Therefore I do not find any ground to interfere with the decision of the court below. Therefore FAO stands dismissed. M.N.KRISHNAN, JUDGE Cdp/-