IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 WP(C).No. 30900 of 2009(O) -------------------------- OS.64/2002 of SUB COURT, CHERTHALA .................... PETITIONER(S): --------------- 1. DINESAN, S/O.PADMANABHAN, SANKARA BHAVAN, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT. 2. GEETHA, W/O.DINESAN, OF -DO-. BY ADV. SRI.P.J.JOSEPH PANIKKASSERY SRI.A.S.SASIDHARAN RESPONDENT(S): --------------- VISWAMBHARAN, PUTHENTHARA, VALAMANGALAM VADAKKUM MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA. ADV. DR.V.N.SANKARJEE FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.30900/09 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE PETITION I.A.NO.936/07 DATED 17/8/07. EXT.P2: COPY OF C.M.A.NO.11/09 DATED 29.6.2009. EXT.P3: COPY OF RESTORATION PETITION I.A.NO.835/09 DATED 3.10.2009. EXT.P4: COPY OF STAY PETITION I.A.NO.964/09 DATED 26.10.2009. EXT.P5: COPY OF STAY PETITION I.A.NO.2010/09 DATED 12.10.09. EXT.P6: COPY OF ORDER DATED 20.10.2009. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.30900 OF 2009 (O) ----------------------------------- Dated this the 14th day of December, 2009 J U D G M E N T Petitioners are the defendants in O.S.No.64 of 2002 on the file of the Sub Court, Cherthala. Suit is one for specific performance of an agreement for sale. Suit has been decreed ex parte. An application filed by the petitioners/defendants to set aside the ex parte decree was dismissed by the learned Sub Judge. Petitioners thereupon preferred an appeal as C.M.A.No.11 of 2009 before the District Court, Alappuzha. The appeal was also dismissed for default. Petitioners moved an application to restore the appeal to file. Pending that application for restoration, the respondent/decree holder is taking hasty steps for execution of the decree is the grievance canvassed in the writ petition for appropriate directions/orders to the execution court to keep in abeyance the execution proceedings from the decree till disposal of the appeal preferred by the petitioners. WPC.30900/09 2 2. I heard the counsel on both sides. From the submissions made and taking note of the facts and circumstances presented, it is seen, previously, more than once the decree passed ex parte had been set aside. Pursuant to judgment rendered by this Court in the appeal preferred against the order dismissing his application, ex parte decree was set aside subject to terms. In that appeal, setting aside of the ex parte decree was allowed subject to payment of cost of Rs.2,000/-. Again the decree was passed ex parte and that too was set aside subject to payment of cost of Rs.10,000/-. Now in the present writ petition, the question of the dismissal of the application relating to the decree passed ex parte after the two previous occasions, is canvassed before this Court, is the submission of the learned counsel appearing for the respondent/decree holder. It is further submitted after passing of the decree, the respondent/plaintiff had deposited the balance sale consideration of more than Rs.1 lakh on 18.10.2009 to get the sale deed executed through court. When such be the facts of the case, I find no indulgence can WPC.30900/09 3 be extended to the petitioners/defendants in the suit. However, there will be a direction to the learned District Judge, Alappuzha to dispose of the restoration application moved by the petitioners in C.M.A.No.11 of 2009 as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt/production of a copy of this judgment. Writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp