IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 FAO.No. 10 of 2011 --------------------------- (AGAINST THE ORDER DATED 24.3.2010 IN I.A.339/2007 IN O.S.135/2005 OF SUB COURT, NEYYATTINKARA.) .................. APPELLANT (S):PETITIONER: ------------------------------------------ DANIEL DAS, S/O.DANIEL, THERUVILAKATHU VEEDU, BALARAMAPURAM DESOM, NEYYATTINKARA TALUK, TRIVANDRUM. BY ADV. SRI.M.R.SARIN RESPONDENT(S): COUNTER PETITIONER: ------------------------------------------------------------ SUKESHAN, S/O.APPU, SUDHALAYAM, MUDAVOORPAR DESOM, BALARAMAPURAM, NEYYATTINKARA-695002. ** RADHAKRISHNAN, S/O.NANOO MADHAVAN, AGED 50, HAVING PERMANENT ADDRESS AT KRISHNENTHU BALARAMAPURAM NOW EMPLOYED AT NASSIM-A1 BARARI GENERAL TRADING COMPANY POST BOX NO 22927 DUBAI, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AS SUKESHAN, S/O.APPU, SUDHALAYAM, MUDDAVOOR DESOM, BALARAMAPURAM, NEYYATTINKARA. ( The name of respondent is corrected as Radhakrishnan as per order dated 20.10.2011 in I.A.No.3291/2011) BY ADV. SRI.M.SREEKUMAR THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.No.10 of 2011 ----------------------------------------- Dated, this the 2nd day of November, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the defendant in a suit for money. An exparte decree was passed against him. He filed I.A.No.339/2007 to set aside the exparte decree. The said application has been dismissed. No doubt, the court below has found that the case set up by the appellant for non appearance cannot be believed. It is found in particular that he was able to attend the Judicial First Class Magistrate Court-X, Thiruvananthapuram on 13.2.2007. But, when the suit was posted in the list for trial on 12.2.2007 he was unable to attend the court. The case of the appellant is that the document is fabricated and he prays for an opportunity for adjudication on merits. 2. We heard the learned counsel for the respondent who appeared apparently in pursuance of notice in the delay petition. He opposed grant of any relief in the appeal. 3. We would think that having regard to the need for an adjudication of the matter, the impugned order must be set aside and the application must be allowed and an opportunity should be given to the appellant to contest the matter on merits. Accordingly, we allow this appeal. The impugned order will stand FAO 10/2011 -2- set aside, the application filed by the appellant will also be allowed and the exparte decree set aside on condition that the appellant will pay a sum of Rs.10,000/- (Ten thousand) as costs to the learned counsel for the respondent appearing in this Court within a period of 10 days from today and produce the memo before this Court. We make it clear that, the appeal is allowed subject to the further condition that the appellant will deposit 40% (Forty percent) of the EP amount before the court below within a period of one month from today. If both these conditions are satisfied the impugned order will stand set aside and the Sub Court, Neyyattinkara will proceed to dispose of O.S.No.135/2005 before the closure of the Courts for Summer Vacation-2012. We further make it clear that, in case the appellant does not comply with either of the conditions imposed as aforesaid, the appeal will stand dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS