IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 FAO.No. 157 of 2011() --------------------- AGAINST THE ORDER DATED 07/03/2011 IN IA 405/2010 IN OS.41/2008 of SUB COURT, CHENGANNUR .................... APPELLANTS/PETITIONERS/2ND AND 3RD DEFENDANTS --------------------------------------------------------------- 1. P.S.THULASIDHARAN PILLAI, AGED 55 YEARS, S/O.SREEDHARAN NAIR, VADAKKETHIL VEEDU, KIZHAKKENADA, LAHASSERY, CHENGANNUR. 2. P.MOHANAN PILLAI, AGED 56 YEARS, HARIVILASAM, KODUKULANJI, KARODU MURI, KOZHUVALLOOR, CHENGANNUR. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT/CR.PETITIONER/PLAINTIFF -------------------------------------- CHANDRAMATHY AMMA, AMBIKA SADANAM, LAHASSERY, KIZHAKKENADA, CHENGANNUR. PIN-689 121. ADV. SRI.R.RAMADAS FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX TO F.A.O.No.157 of 2011 PETITIONER'S EXHIBITS: ANNEXURE I: CERTIFIED COPY OF ORDER IN I.A.404/2010 IN O.S.41/08 DATED 7/3/2011 SUB COURT, CHENGANNUR. RESPONDENT'S EXHIBITS: NIL // True Copy// PA to Judge K.M.JOSEPH & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * * F.A.O.No.157 of 2011 ---------------------------------------- Dated this the 9th day of December 2011 J U D G M E N T K.M.JOSEPH,J The appellants are defendants 2 and 3 in O.S.No.41/08 on the file of the Sub Court, Chengannur. They are the petitioners in I.A.No.405/2010 which is an application under Order 9 Rule 13 of C.P.C accompanied by another application for condonation of delay of 654 days. The application for condonation of delay was dismissed by the court below, the copy of the order is produced as Annexur I in the appeal. The court below dismissed the application under Order 9 Rule 13 of C.P.C also. 2. We have heard the learned counsel for the appellants and the learned counsel for the respondent/decree holder. The case of the appellants would appear to be that the case was originally filed before the Sub Court, Mavelikkara and was subsequently made over to the Sub Court, Chengannur. The appellants were not aware of the proceedings. F.A.O.No.157 of 2011 2 3. The learned counsel for the respondent/decree holder, on the other hand, points out that the suit was of the year 2004 and the appellants have admitted the liability of a sum of Rs.2,50,000/-. He further points out that the case was made over to the Court at Chengannur in 2008. He further submits that it is true that the court made an attempt to settle the matter. Since the matter was not settled, the matter was posted for evidence on a number of occasions; but the appellants did not give any evidence and it is consequently that the order rejecting the application to condone the delay was passed as evident from Annexure 1. It is pointed out that the suit was decreed for the amount with interest and the suit is of the year 2004. It is further complained that it is difficult to believe that the appellants were not aware of the proceedings which were pending before the Sub Court, Chengannur. 4. The learned counsel for the appellants do not dispute that they admit liability in a sum of Rs.2.25 lakhs; but they dispute the liability in respect of the sum in excess of Rs.2.25 lakhs. F.A.O.No.157 of 2011 3 5. We feel that an opportunity can be given to the appellants for establishing their case. But it cannot be an unconditional order. Accordingly we pass the following order. i) The appeal is allowed. ii) The applications filed by the appellants will also stand allowed and the ex parte decree stand set aside as against the appellants on condition that the appellants deposit a sum of Rs.3,50,000/- (Rupees three lakhs fifty thousand only) within a period of six weeks from today and also a sum of Rs.5,000/- (Rupees five thousand only) as costs to the learned counsel appearing for the respondent/decree holder before this Court and produce a memo to that effect within a period of two weeks from today. iii) If deposit of Rs.3,50,000/- is being made by the appellants, it will be open to the respondent/decree holder to withdraw Rs.3,00,000/- (Rupees three lakhs only) and the balance amount of Rs.50,000/- will continue to remain in deposit. iv) Upon the conditions being satisfied as aforesaid, the court below will take up O.S.No.41/08 and dispose of the same as early as possible, at any rate, on or before 30/06/2012. F.A.O.No.157 of 2011 4 v) If either of the conditions as directed are not satisfied, the appeal will stand dismissed. (K.M.JOSEPH, JUDGE) (A.M.SHAFFIQUE, JUDGE) jsr Certified that the appellants have paid Rs.5,000/- (Rupees five thousand only) as costs to the counsel for the respondent within the time limit in compliance of the direction contained in the judgment dated 09/12/2011 in F.A.O.157/2011 vide memo c.f.6109/2011 dated 23/12/2011. // True Copy// PA to Judge F.A.O.No.157 of 2011 5 F.A.O.No.157 of 2011 6 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010