IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 OP(C).No. 3654 of 2011(O) ------------------------------------- IA. 591/11 & IA./592/11 IN OS.46/2009 of SUB COURT, OTTAPPALAM .................... PETITIONER (S): ------------------------ SETHUMADHAVAN,AGED 38 YEARS, S/O.GOPI KURUP, AMBADIYIL HOUSE, VELLINEZHI POST,OTTAPALAM TALUK BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): -------------------------- UNNIKRISHNAN, S/O.RAMANKUTTY THARAKAN, THOTTATHIL HOUSE,VEERAMANGALAM AMSOM,MANGOD DESOM OTTAPALAM TALUK, REP.BY THE POWER OF ATTORNEY HOLDER INDIRA,W/O.UNNIKRISHNAN, THOTTATHIL HOUSE VEERAMANGALAM PIN-679502 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.3654/2011 APPENDIX PETITIONER(S) EXHIBITS P1:- COPY OF PLAINT IN OS.NO.46/2009 OF SUB COURT,OTTAPALAM P2:- COPY OF EP NO.94/09 IN OS .46/2009 OF SUB COURT, OTTAPALAM P3:- COPY OF SALE DEED EXECUTED IN EP 94/2009 IN OS 46/2009 OF SUB COURT, OTTAPALAM P4:- COPY OF THE DELIVERY REPORT IN EP 94/2009 IN OS NO.46 2009 OF MUNSIFFS COURT, OTTAPALAM P4(A):- COPY OF DELIVERY ACCOUNT IN EA 274/2010 IN EP 94/2009 IN OS 46/09 OF SUB COURT, OTTAPALAM. P5:- COPY OF AFFIDAVIT AND IA 591/2011 IN EP 94/2009 IN OS 46/2009 OF SUB COURT OTTAPALAM P6:- COPY OF AFFIDAVIT AND PETITION IA 592/2011 IN EP 94/09OF SUB COURT , OTTAPALAM. P7:- COPYOF THE OBJECTION FILED IN IA 591/2011 IN OS NO.46/2009 OF SUB COURT, OTTAPALAM DTD.4/3/2011 P8:-COPY OF THE OBJECTION FILED IN IA 592/2011 IN OS NO.46 2009 OF SUB COURT, OTTAPALAM, 4/3/2011 P9:- COPY OF COMMON ORDER PASSED IN IA 591/2011 & 592/2011 IN OS NO.46/2009 OF SUB COURT ,OTTAPALAM DTD.28/10/2011. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3654 of 2011 -------------------------------------- Dated this the 9th day of December, 2011. JUDGMENT Respondent though served, remains absent. 2. Petitioner is the plaintiff in O.S.No.46 of 2009 of the court of learned Sub Judge, Ottappalam. He sued the respondent for recovery of money as per an agreement allegedly executed by the respondent. Respondent appeared in the trial court on 19.06.2009 through Advocate Jayaprakash who filed vakalath for the respondent but, did not file any written statement. Hence the respondent was set exparte. That was followed by an exparte decree on 25.07.2009. Petitioner filed E.P.No.94 of 2009 and the executing court proceeded against the attached property of respondent. The same was auctioned and purchased by petitioner. It is stated that property was delivered over to the petitioner. While so, respondent filed I.A. Nos.591 of 2011 and 592 of 2011 to set aside the exparte decree and to condone the delay of 555 days. It appears that respondent took the stand that he was unaware of the proceedings in court. Petitioner filed objections to those applications. Learned Sub Judge by Ext.P9, order though not satisfied of the reasons stated by the respondent thought that respondent must be given an opportunity to contest the case on terms of cost and consequently allowed I.A.Nos.591 of 2011 and 592 of 2011 on cost of `10,000/-. That order is under challenge. OP(C)No.3654/2011 2 3. It is submitted by learned counsel that the statements made by respondent in the affidavit in support of I.A.Nos.591 and 592 of 2011 are proved to be not correct and that impressed the learned Sub Judge. But, in spite of that, without entering a satisfaction that respondent had sufficient cause in not applying to set aside the exparte decree on time, learned Sub Judge has proceeded to grant relief to the respondent as prayed for in I.A.Nos.591 of 2011 and 592 of 2011. That, according to the learned counsel is not correct. 4. As aforesaid, it would appear that respondent had appeared in the trial court through counsel but failed to file written statement and that was followed by an exparte decree. It is pointed out by the learned counsel that notice of execution petition was served on the respondent and he filed counter counter affidavit on 11.01.2011 but, I.A.Nos.591 of 2011 and 592 of 2011 are filed only on 28.01.2011. It is pointed out that respondent had appeared in the execution proceedings much prior to 11.01.2011. It is also pointed out by the learned counsel that Ext.A1, power of attorney executed by respondent is dated 27.08.2010 and respondent when examined as PW1 stated that he executed the power of attorney when he came to his native place in August, 2010. But, the applications are preferred only on 28.01.2011. 5. On going through Ext.P9, order it is seen that learned Sub Judge was not very much impressed by the explanation offered by the respondent. In paragraph 9 it is observed that the explanation given by the respondent is not at OP(C)No.3654/2011 3 all sufficient as Ext.A1, power of attorney would show that respondent had been to his native place in August, 2010 but, still he did not file application to set aside the exparte decree then. 6. The Supreme Court in Ramlal and others v. Rewa Coalfields Ltd. (AIR 1962 SC 361) has held that discretionary jurisdiction of the court to condone delay arises only when the party has shown sufficient cause as Section 5 of the Limitation Act states. Thus, the question of court below exercising discretionary jurisdiction to condone the delay would arise only if respondent was able show sufficient cause for the delay in filing the application to set aside the exparte decree and the court was satisfied of the same. In that view of the matter I am inclined to think that learned Sub Judge has not considered the matter in its correct perspective. The matter requires reconsideration. Resultantly this Original Petition is allowed. Ext.P9, order is set aside and I.A.Nos.591 of 2011 and 592 of 2011 (in O.S.No.46 of 2009) are remitted to the court of learned Sub Judge, Ottappalam for fresh decision after hearing both sides and if necessary, giving opportunity to both sides to adduce further evidence. THOMAS P.JOSEPH, Judge. cks