IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 RP.No. 1194 of 2009 IN FAO NO.250/2009 --------------------------------------------------------- AGAINST THE JUDGEMENT IN FAO.250/2009 Dated 13/11/2009 .................... REVIEW PETITIONER(S): /RESPONDENT/PLAINTIFF: ------------------------------------------------------------------------- CHANDRAMATHI AMMA, AMBIKA SADANATHIL, LAHASSERI MURI, KIZHAKKENADA, CHANGANNUR. BY ADV. SRI.R.RAMADAS RESPONDENT(S): APPELLANT/IST DEFENDANT: -------------------------------------------------------------------- T.M.G.FINANCE & LEASING PVT. LTD., REP. BY THE MANAGING DIRECTOR M.GOPINATH, KAMALA NIVASIL, THITTAMEL MURI, CHENGANNUR VILLAGE. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ R.P.No.1194 of 2009 in FAO No.250 of 2009 ---------------------------------------------- Dated, this the 15th day of December, 2009 O R D E R K.M.Joseph, J. In the appeal the challenge was against the order passed on an application to set aside the ex parte decree passed in favour of the review petitioner. This Court allowed the appeal on certain conditions to be fulfilled by the appellant. 2. The complaint of the review petitioner is that the decree in question was a money decree and there is no basis to set aside the decree as a whole and the decree could have been set aside only as against the aggrieved party. It is pointed out that apart from the appellant, defendants 2 and 3 remained exparte. The 4th defendant has already carried the matter in independent appeal which is pending consideration before the District Court, Mavelikkara. The learned counsel would place reliance on the decision of the learned Single Judge in Shiva v. Fertilizer & Chemicals Travancore Ltd. and R.P.No.1194/2009 -2- Others (2009 (4) K H C 879). We find merit in the contention of the learned counsel. Learned counsel for the respondent would rely on the decision in Bank of India v. Mehta Brothers and Others { (2008) 13 SCC 466}. Therein the Court took the view that if the decree is indivisible, the court can set aside the decree not only against the defendant who applied, but against all the defendants. In view of the facts already noted, we need only set aside the decree as against the appellant in the appeal. In such circumstances, the Review Petition is allowed and in the appeal the ex parte decree stands set aside as against the appellant alone. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS