IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 WP(C).No. 31259 of 2009(O) -------------------------- OS.189/2004 of II ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- SAMARIAS CENTRE APARTMENT OWNERS' ASSOCIATION, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CHARLY JOHN. BY ADV. SRI.VIVEK VARGHESE P.J. SRI.P.J.VINOD JOSEPH RESPONDENT(S): --------------- BASHEER M.PICHA, S/O.MAITHEEN PICHA, AGED 56 YEARS, VILLA NO.981, ROAD 5024, BLOCK NO.950, ASKAR, MANAMA, BAHRIAN, REP.BY HIS POWER OF ATTORNEY HOLDER, PUTHUVEETTIL ABDULLA FAIZAL, AGED 32 YEARS, RESIDING AT PUTHUVEETTIL HOUSE, PUTHIYANGADI.P.O, NATTIKA BEACH, TRICHUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.31259 OF 2009 () ----------------------------------- Dated this the 5th day of November, 2009 J U D G M E N T Petitioner is the plaintiff in O.S.No.189 of 2004 on the file of the IInd Additional Sub Court, Thiruvananthapuram. The above suit was one for money, in which, an ex parte decree was passed against the respondent. When execution proceedings were taken, the respondent moved an application for setting aside the ex parte decree with a petition to condone delay of 1178 days. Petitioner/plaintiff filed objection to the application moved under Order IX Rule 13 of the Code of Civil Procedure. The court below allowed the application condoning the delay on payment of Rs.2,000/- to the respondent/defendant. Ext.P6 is that order. Propriety and correctness of Ext.P6 order is challenged in the writ petition. 2. I heard the counsel on both sides. None of the objections raised by the petitioner/plaintiff has been WPC.31259/09 2 considered by the court below while allowing the application moved by the respondent/defendant for setting aside the ex parte decree, condoning the long delay of more than three years, is the submission of the learned counsel for the petitioner. Respondent was all along aware of the ex parte decree in the suit and also in the execution proceedings, petitioner had to resort to substituted service by publication in national dailies even in the gulf country where the respondent is stationed, is the further submission of the counsel to contend that petitioner had incurred substantial expenses even for such service of notice. The court below has not adverted to any of those aspects while passing Ext.P6 order and the costs awarded in the given facts of the case is too meagre, according to the counsel for the petitioner. On the otherhand the learned counsel for the respondent/defendant submitted that Ext.P6 order has been passed by the court below after analysing the facts and circumstances involved and that order passed in exercise of the judicial discretion of the court below does not warrant any interference or modification invoking the visitorial jurisdiction vested with WPC.31259/09 3 this Court. 3. Having regard to the submissions made and the facts and circumstances presented, I find there is some force in the submissions made by the learned counsel for the petitioner/plaintiff that even if opportunity is to be extended for the respondent, he has to compensate the injury that has been caused to the petitioner/plaintiff in condoning the long delay and also in setting aside a decree which had been granted in his favour. Taking note of the facts and circumstances, I find that the cost imposed by the court below has to be enhanced to Rs.10,000/- as a condition precedent for allowing the application moved by the respondent/defendant for setting aside the ex parte decree. Cost as indicated above, shall be paid within a period of two weeks from today to the counsel appearing for the petitioner before this Court by the respondent/defendant. In default of payment of the cost within the time stipulated, Ext.P6 order shall stand set aside without any further order. Over and above, the enhancement of the cost as above, it is further ordered that the property WPC.31259/09 4 (apartment) in respect of which suit claim is passed, which had been attached towards the satisfaction of the suit claim shall be offered as security for the suit claim for extending him an opportunity to have a decision in the suit on merit after setting aside the ex parte decree. With the above directions, the writ petition is disposed. Post for compliance report, after three weeks. S.S.SATHEESACHANDRAN JUDGE prp