IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 FAO.No. 178 of 2008 AGAINST THE ORDER DATED 03/06/2008 IN IA 1395/2007 IN OS.62/2002 OF SUB COURT, OTTAPPALAM APPELLANT: PETITIONER:1ST DEFENDANT: VIJAYAN @ K.SANKARAPRASAD S/O. KALLINKAL GOVINDAN NAIR KADAMBUR DESOM , VADAKKUMPURAM AMSOM OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENTS: RESPONDENTS: PLAINTIFF & 2ND DEFENDANT: 1. MYMUNA, W/O.SAIDALI KUNNATHU VEEDU, VADAKKUMPURAM AMSOM ARAVAKKAD DESOM. 2. K.B.RAMESH,S/O.BALAN THAZHATHETHIL VEEDU, VADAKKUMPURAM, KADAMBUR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- F.A.O. NO. 178 OF 2008 ------------------------------------------------------------- Dated this the 22nd September, 2008 JUDGMENT K.T.Sankaran, J. The first defendant in O.S.No.62 of 2002, on the file of the Sub Court, Ottapalam, against whom the suit was decreed exparte, filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the exparte decree. The suit was decreed exparte on 19.6.2007. The application was filed within the period of limitation. The court below dismissed the application on the ground that no medical certificate was produced to prove the contention of the petitioner that he was laid up due to fever and headache on the date on which the suit was posted for trial. 2. In the facts and circumstances of the case, we are of the view that the lower court should have allowed the application and set aside the exparte decree on payment of costs to the plaintiff. The application having been filed within time, it cannot be presumed that there was deliberate laches on the part of the appellant. It is not seen from the order passed by the court below that there was any contumacious conduct on the part of the appellant or that he has deliberately acted in a manner to protract the case. F.A.O. NO. 178 OF 2008 :: 2 :: 3. The Appeal is accordingly allowed, the order impugned is set aside and the exparte decree passed by the court below is set aside on condition that the petitioner shall pay a sum of Rs.2,500/- as costs to the plaintiff within a period of one month from today. If the appellant fails to pay the costs, the FAO will stand dismissed with costs. The interlocutory application for stay, I.A.No.2927 of 2008 is dismissed. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/