IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 FAO.No. 94 of 2010() -------------------- AGAINST THE ORDER DATED 15/02/2010 IN IA.415/2007 IN OS.6/2000 of SUB COURT, CHERTHALA .................... APPELLANT/PETITIONER/DEFENDANTS 1 & 2 --------------------------------------------------------- 1. AGENCY FOR DEVELOPMNT OF AQUA CULTURE KERALA, THIRUVANANTHAPURAM-14, REPRESENTED BY ITS EXECUTIVE DIRECTOR. 2. EXECUTIVE DIRECTOR, AGENCY FOR DEVELOPMENT OF AQUA CULTURE KERALA, THIRUVANANTHAPURAM-14. BY ADV. SRI.C.A.JOY RESPONDENT(S): CR.PETITIONRS/PLAINTIFFS & DEFENDANTS 3 & 4 ---------------------------------------------------------- 1. P.A.ARIFA, KEETHODIYIL HOUSE, PANAVALLY P.O., CHERTHALA, ALAPPUZHA DISTRICT. 2. K.M.KHALID, -DO- 3. K.K.SIYAD, -DO- 4. BABITHA, -DO- 5. THE DEPUTY THAHSILDAR(RR), CHERTHALA. 6. THE DEPUTY THAHSILDAR, TALUK OFFICE, CHERTHALA. ADV. SRI.T.RAMPRASAD UNNI FOR R1 & 2 SRI.J.R.PREM NAVAZ FOR R1 & 2 SMT.SMITHA GEORGE FOR R1 & 2 ,3 SR. GOVERNMENT PLEADER SRI.LAKSHMI NARAYAN FOR R5&6 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ F.A.O. No. 94 of 2010 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 12th day of April, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ Thottathil B. Radhakrishnan, J. This appeal is against an order by which the court below dismissed an application to set aside an ex- parte decree, after dismissing an application seeking condonation of delay in applying to have the ex-parte decree set aside. Defendants 1 and 2, who are the appellants, are the Agency for Development of Aqua Culture, Kerala and its Executive Director. Defendants 3 and 4 are officials in the Revenue Department of the Government. Going by the ex-parte decree, it has to be satisfied by defendants 1 and 2, the appellants herein. 2. The applications to set aside the ex-parte decree and for condonation of delay were supported by FAO No.94/2010 : 2 : affidavits of the Regional Executive of the 1st defendant, which contain the following specific averments:- “ On verification of the court records, the following facts were understood by the petitioners: On 09-10-2000 this Hon'ble court was pleased to order 'No vakkalath for D1 and D2, no representation declared exparte. The suit was later dismissed for default on 25-08-2001. IA No.1099/2001 was filed by the plaintiff for restoration of the suit. In that case copy of the I.A was served on the G.P. and the notice was ordered to the petitioners. But no notice was received by the petitioners herein. By order dated 20-12-2002 this Hon'ble Court was pleased to restore the suit. Later on 27-02-2003, the suit was again dismissed for default. The respondents/plaintiff filed IA No.443/2003 for restoration of the suit. The notice of the above restoration application was FAO No.94/2010 : 3 : given to the G.P. And no notice was ordered on the petitioners who are defendants 1 and 2. Thereafter plaintiffs/respondents 1 to 4 filed IA No.618/2004 to remove the defendants 3 and 4 who are the revenue recovery officials. After that this Hon'ble Court by Judgment dated 07-07-2004 decreed the suit.” 3. We do not see from the impugned order that the court below has found against the aforesaid specific plea on facts, based on court records. 4. That apart, the fact of the matter remains that after the defendants were set ex-parte, at the first instance, the suit was dismissed twice and restored on both occasions without notice to the appealing defendants 1 and 2. After that exercise, the Government servants, who are defendants 3 and 4, were FAO No.94/2010 : 4 : removed from the party array. Thereafter, the ex-parte decree was passed. The plea of the appellants was that they came to know about the situation only when they obtained notice from the execution court. In such circumstances, we are of the view that the court below was not justified in holding that the appellants have not established sufficient cause to have the delay condoned and the ex-parte decree set aside. 5. The learned senior counsel appearing for the plaintiffs, however, argued that prior to the issuance of the ex-parte decree, the defendants were set ex-parte on an earlier date and that order, not having been challenged, the ex-parte decree cannot be set aside. We are unable to accept this contention in the light of Order 9 Rule 13, which provides for application to set aside the ex-parte decree. The period of limitation for such application is also prescribed with reference to the date on which the ex-parte decree is passed. The provision FAO No.94/2010 : 5 : of Order 9 Rule 7 would apply in cases, where the suit is pending and the fact that the defendants did not apply to set aside that order does not impair the right of the defendant to apply for setting aside the ex-parte decree. This is the clear flow of the law on the point in Order 9 of the CPC. 6. The learned senior counsel for the plaintiffs further argued that the decree was within the knowledge of the appellants in as much as on 09.08.2005, the copy of the decree was forwarded by the plaintiffs to the appellants demanding return of the original title documents and, therefore, the delay from that point of time ought to be explained. We have already noticed that the decree was passed without serving any notice on the defendants as regards the two applications for restoration of the suit, which was dismissed for default. Therefore, in our view, the decree passed ex-parte on a suit, which was restored without notice to the appealing FAO No.94/2010 : 6 : defendants, did not bind them and, therefore, there could not have been any laches or delay in applying to get the delay condoned. In the result, we are satisfied that there was sufficient cause to condone delay and to have the ex- parte decree set aside. The appeal is allowed, setting aside the impugned order. I.A.Nos.415/2007 and 416/2007 in O.S.No.6/2000 of the Sub Court, Cherthala are consequentially allowed. The parties are directed to mark their appearance before the court below on 30.05.2011. Sd/- (THOTTATHIL B. RADHAKRISHNAN, JUDGE) Sd/- (S.S.SATHEESACHANDRAN, JUDGE) aks/12.04 // True Copy // P.A. To Judge