IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 OP(C).No. 4050 of 2011(O) ------------------------- OS.22/2010 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER/APPELLANT/DEFENDANT: --------------------------------- KANA VEETTIL VINOD, S/o.DAMODARAN AGED 33 YEARS, R/AT CHUMADUTHANGI CHERUTHAZAM AMSOM DESOM P O MUNDOOR, KANNUR TALUK BY ADV. SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------- BIJU PUNNATHIRIYAN, AGED 32 YEARS S/o. SREEMATHI, MOTTAMBRATH PUTHIYANGADI, MADAYI VILLAGE KANNUR TALUK THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 4050 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : THE TRUE COPY OF THE PLAINT EXHIBIT P2 : THE TRUE COPY OF THE WRITTEN STATEMENT EXHIBIT P3 : THE TRUE COPY OF THE ORDER IN I.A.NO.2137/2010 IN O.S.22/2010 IN MUNSIFF COURT, PAYYANNUR EXHIBIT P4 : TRUE COPY OF the ORDER IN CMA 16/2011 OF SUB COURT, PAYYANNUR RESPONDENT'S EXHIBITS: NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.4050 of 2011 --------------------------------------- Dated this 12th day of December, 2011 JUDGMENT Petitioner is the defendant in O.S.No.22 of 2010 of the Court of learned Munsiff, Payyannur. That is a suit filed by the respondent for recovery of money allegedly paid by the respondent as advance to the petitioner pursuant to the agreement for sale allegedly executed between them. Petitioner filed Ext.P2, written statement. But, when the case was posted for trial in the list himself and counsel remained absent and that was followed by an ex parte decree. Later petitioner filed application to set aside the ex parte judgment and decree. That application was allowed by Ext.P3, order subject to the condition that petitioner shall deposit 1/4th of the plaint claim (around `.25,000/-) within 15 days from the date of the order. Petitioner did not deposit that amount and challenged the order in C.M.A.No.16 of 2011. Learned Sub Judge by judgment dated 08.11.2011 confirmed order of the trial court. Ext.P3, order and Ext.P4, judgment are under challenge. 2. It is contended by the learned counsel that condition imposed on petitioner is too onerous and that he is not in a O.P(C).No.4050 of 2011 -: 2 :- position to comply with that. It is also submitted that property of petitioner has been placed under attachment. 3. Attachment does not amount to security for the amount if payable under the decree. May be that the application to set aside ex parte decree was filed within one month from the date of the decree. But, it is not as if trial court has exceeded its power in imposing condition while setting aside the ex parte decree. This Court in exercise of its supervisory power under Art.227 of the Constitution is not required to interfere unless the discretion has been exercised in a perverse or arbitrary manner. 4. The claim of respondent which now has culminated in the decree is that he advanced certain amount to the petitioner in connection with the agreement for sale of property and petitioner neither returned the amount nor executed sale deed. Contention of petitioner that it was the respondent who committed breach is another matter to be considered after reopening of the case. In the circumstance, I do not find reason to interfere with the discretionary power exercised by the learned Munsiff as confirmed by the learned Sub Judge. 5. Since the appellate court has not granted time to the petitioner to deposit the amount I am inclined to grant time. O.P(C).No.4050 of 2011 -: 3 :- Resultantly this original petition is disposed of granting a months' time from this day to the petitioner to comply with the condition imposed by learned Munsiff in Ext.P2, order. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-