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 APRIL 2011 / 14TH CHAITHRA 1933 FAO.No. 37 of 2011() -------------------- I.A.NO.124/2010 IN OS.103/2007 of SUB COURT, HOSDURG .................... APPELLANT/PETITIONER/3RD DEFENDANT: ------------------------------------------------------------------ C.V.KRISHNAN,AGED 60 YEARS,S/O.KOMAN, TREASURER,PUDUKAI VAININGAT SREE VAIRAJATHAN ESHWARAN KSHETHRA COMMITTEE,PUDUKAI,PUDUKAI VILLAGE,HOSDURG TALUK. BY ADVS. SRI.T.K.VIPINDAS, SMT.P.K.PRIYA, SRI.K.V.SREE VINAYAKAN. RESPONDENT(S): RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 AND 2: -------------------------------------------------------------------------------------------------------------- 1. PRASANNA KUMARI,W/O.A.V.VISHNU EMBRANTHIRI, NO:132,DOLPHIN QUARTERS,ALAMIPALLY, HOSDURG VILLAGE,HOSDURG TALUK,KASARAGOD DISTRICT, PIN-671 315. 2. PUDUKAI VAININGAT SREE VAIRAJATHAN, ESHWARAN KSHETHRA COMMITTEE,REP.BY SECRETARY, V.BALACHANDRAN,AGED 38 YEARS. 3. V.BALACHANDRAN,AGED 38 YEARS,SECRETARY, S/O.KRISHNAN,PUDUKAI,PUDUKAI VILLAGE, HOSDURG TALUK. R1 BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN & P.BHAVADASAN, JJ. ~~~~~~~~~~~~~~~~~~~~~~ F.A.O. No. 37 of 2011 ~~~~~~~~~~~~~~~~~~~~~~ Dated this the 4th day of April, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ Thottathil B. Radhakrishnan, J. We have heard the learned counsel for the parties. 2. The appellant is one among the three defendants in a suit for money. Suit stands decreed ex- parte. The court below considered the application to set aside the ex-parte decree, along with an application to condone delay in filing that application. The application seeking condonation of delay was allowed, on condition that the appellant will pay the plaintiff an amount of `3,000/- as cost, within the time limit prescribed. That was not done. As a consequence, the delay petition and FAO No.37/2011 : 2 : the application under Order 9 Rule 13 were dismissed. It is how the appeal is before us. 3. While the learned counsel for the appellant says that her client was in penurious circumstances and could not pay the amount in time, we find that the case of the plaintiff is that, a temple committee had run a chitty transaction and the appellant was the treasurer of the committee. We say this only to note that it would have been only worthwhile for the appellant to have paid the cost in time and prosecute his application seeking that the ex-parte decree be set aside. 4. On the totality of the facts, we are satisfied that, ends of justice would be satisfied by pegging the order for costs at `5,000/- instead of `3,000/- as ordered by the court below. Hence, we vacate the order dismissing application for condonation of delay on payment of the costs fixed. We set aside the impugned FAO No.37/2011 : 3 : order, on condition that the appellant will pay the plaintiff/respondent No.1 an amount of `5,000/- as costs. Today, such amount is being paid in court by the counsel for the appellant. The court below will treat the application for condonation of delay as allowed and would take the application for setting aside the ex-parte decree and proceed with in accordance with law. F.A.O. ordered accordingly. Sd/- (THOTTATHIL B. RADHAKRISHNAN, JUDGE) Sd/- (P.BHAVADASAN, JUDGE) aks/05.04 // True Copy // P.A. To Judge