IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 14144 of 2009(O) --------------------------------------- OS.NO.135/2006 OF SUB COURT,KATTAPPANA. .................... PETITIONER: ------------------- MATHAYI @ APPACHAN, S/O.THOMAS, THEVARUPARAMBIL (H), MES COLLEGE JUNCTION, VATTAPPARA KARA, PAMPADUMPARA VILLAGE, UDUMBANCHOLA. BY ADV. SMT.LATHEESH SEBASTIAN. RESPONDENT: ---------------------- SHIJU JOHN, AGED 35 YEARS, S/O.JOHN, KAZHATHUKUNNEL (H), MES COLLEGE JUNCTION BHAGOM, VATTAPPARA KARA, PAMPADUMPARA VILLAGE, UDUMBANCHOLA. BY ADV. MR.JOICE GEORGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.14144 of 2009 - O --------------------------------- Dated this the 10th day of June, 2009 J U D G M E N T This writ petition is filed under Articles 226 & 227 of the Constitution of India seeking the following reliefs: “a) To call for the records in O.S.No.135/2006 from the Sub Court, Kattappana. b) To set aside the direction to deposit 1/7th amount of the cheque amount (Rs.41,714/-) as condition for allowing I.A.No.877/07 and I.A.NO.878/2007 in O.S.No.135/2006 on the files of Sub court, Kattappana and the permission of the respondent to withdraw the amount.” 2. Petitioner is the defendant in O.S.NO.135/2006 on the file of the Sub Court, Kattappana. Suit was one for money based on a cheque which was decreed ex-parte. Petitioner moved an application under Order IX Rule 13 CPC to set aside the ex-parte decree. After enquiry, with notice to the respondent/plaintiff in the suit, learned Sub Judge by Ext.P7 order allowed the application, subject to a condition of petitioner depositing 1/7th portion of the cheque amount which is quantified as Rs.41,714/- W.P.(C).No.14144 of 2009 - O 2 within the time fixed by the court. Impeaching the correctness of that order, petitioner has approached this Court and moved this writ petition seeking the above reliefs. 3. I heard the counsel on both sides. The learned counsel for the petitioner submitted that in the suit, properties of petitioner sufficient to satisfy the decree has already been attached and so much so, imposing a condition for an amount of 1/7th of the cheque amount as a condition precedent for allowing his application was not proper and correct and, further, he is incapable of raising such amount as ordered by the court. so much so, petitioner urged for varying and modifying the condition imposed by the court for setting aside the ex-parte decree. The learned counsel also submitted that on the basis of the very same cheque, a criminal proceeding under Section 138 of the Negotiable Instruments Act had been initiated by the plaintiff, but, that ended in a judgment of acquittal rendered in favour of the plaintiff. On the other hand, the learned counsel for the respondent submitted that deliberate latches and culpable negligence on the part of the petitioner to appear on the hearing W.P.(C).No.14144 of 2009 - O 3 date led to the passing of ex-parte decree and the indulgence shown by the court to the petitioner directing him to deposit 1/7th portion of the cheque amount is now being taken advantage to stall the execution of the decree. The further contention of the counsel is that imposition of the condition for deposit of 1/7th portion of the cheque amount for setting aside the ex-parte decree is within the powers of the court which passed the order and the discretion exercised thereof is not liable to be interfered by exercising writ jurisdiction. Conceding that the complaint filed against the petitioner on the basis of the dishonoured cheque has ended in a judgment of acquittal, it is submitted that the respondent has preferred an appeal and it is still pending. 4. Having regard to the submissions made by the counsel on both sides and taking note of the facts and circumstances presented, I find the direction of the court below under Ext.P7 commanding the petitioner to deposit 1/7th of the cheque amount quantified as rs.41,714/- as a condition precedent for setting aside the ex-parte decree is too excessive W.P.(C).No.14144 of 2009 - O 4 and unsustainable, especially when the suit claim is stated to be secured by an order of attachment. Reasonable sum, in the facts and circumstances could have been imposed as cost payable to the respondent to compensate the injury that is likely to be suffered by him in setting aside the decree which was passed in his favour. So, in modification of Ext.P7 order, I direct the petitioner to pay a sum of Rs.5,000/- as cost to the respondent for setting aside the ex-parte decree. Cost ordered shall be paid to the counsel appearing for the respondent in this Court within a period of two weeks. In default of payment of cost within the time stipulated, the writ petition shall stand dismissed without any further orders. If cost is deposited as directed, then the ex- parte decree passed against the petitioner shall stand set aside and the suit to be restored to file and disposed in accordance with law. The writ petition is disposed of as above. Post after two weeks. S.S.SATHEESACHANDRAN, JUDGE. bkn/-