IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 FAO.No. 184 of 2003() --------------------- AGAINST THE ORDER DATED 08/08/2003 IN IA. 1560 /2003 IN OS.888/1987 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONER/DEFENDANT: ----------------------------- GEORGE KALLIATH, S/O. JACOB KALLIATH RESIDING AT GANDHI NAGAR, CHEROOR ROAD, THRISSUR. BY ADV. SRI.PKM.HASSAN SRI.J.JULIAN XAVIER RESPONDENT/RESPONDENT/ PLAINTIFF ------------------------ SIDECO MOHAN KERALA LTD., FUNCTIONAL INDUSTRIAL COMPLEX, PERINGANDOOR, P.O.THRISSUR, KERALA. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = F.A.O. NO. 184 OF2003 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 25TH DAY OF MAY, 2009. J U D G M E N T Raman, J. This is an appeal by the defendant. The suit is for realisation of amount alleged to have been spent by the plaintiff for the commercial unit established by the defendant. The case was posted on several occasions. There was no case that the defendant was absent on any of those occasion except when the case was posted on 5.3.1997. On that day, the defendant was absent and an ex parte decree was passed. Learned counsel for the appellant contended that the loan amount was advanced by the plaintiff only as an agent of the Kerala Financial Corporation from whom the loan was applied for and sanctioned in favour of the defendant and that the entire transaction was settled with the Kerala Financial Corporation and that his counsel was sick and laid up on the date on which the case stood posted. The court below found that these facts were not stated in the affidavit filed by the counsel and that there was some material difference in the affidavit filed by the counsel and also that of the defendant. The K.F.C. being not a party and in the absence of any evidence to show that the matter in controversy had any nexus to the transaction between the defendant and the K.F.C., the reasons put forth did not inspire confidence in the mind of the court. It is also stated that the application was not filed within 30 days and so, it ought to have been accompanied by an FAO 184/2003 2 application for condonation of delay. No such application for condonation of delay was also filed. It is on these grounds that the petition was dismissed. 2. We have perused the order passed by the court below and heard the parties. 3. It is true that an application for setting aside the exparte decree in terms of Article 127 is to be filed within 30 days of the date of the decree, especially when this is a case where the defendant had been served with summons. But when such an application to set aside the exparte decree was filed without an accompanying petition for condonation of delay, the court ought to have returned the application as defective, since an application belatedly filed without accompanied by a petition for condonation of delay would not have been entertained. Secondly, an affidavit has been filed by the counsel appearing in the case which has got a better evidentiary value and it should have been given due credence. 4. Along with the memorandum of appeal, the appellant has filed an application for condonation of delay - C.M. Appln. 1214/2003. In the view we are taking, we are not considering the application for such condonation of delay. But the said application be transmitted to the court below. The order impugned is set aside and the court below is directed to FAO 184/2003 3 consider the application for setting aside the exparte decree after considering the application for condonation of delay. It is open to the appellant to adduce any evidence. But there is some laches on the part of the appellant/petitioner also in filing such an application before this Court rather than filing the same before the court below. Therefore, we could allow this appeal only on terms. 5. In the result, we allow this appeal on condition that the appellant shall pay an amount of Rs. 5,000/- (Rupees Five thousand) to the respondent within 30 days from today which amount shall be deposited in the court below. On such deposit, the respondent may withdraw the same. 6. C.M. Appln. 1214/2003 and the affidavit be transmitted to the court below and be treated as an accompanying petition for condonation of the delay caused in filing the application to set aside the exparte decree. Both sides shall be given opportunity to adduce evidence in the matter. The appeal is allowed by way of remand. P.R. RAMAN, (JUDGE) KNC/- P. BHAVADASAN, (JUDGE)