IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 OP.No. 6845 of 2003(M) ---------------------- ( O.S.NO.53/1997 ON THE FILE OF MUNSIFF COURT, ALATHUR) PETITIONER(S): --------------- ANTONY, S/O. VARKEY, CHEKENY MANNURKARA, VADAKKANCHERRY AMSOM AND DESOM, ALATHUR TALUK. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR RESPONDENT(S): --------------- THOMAS, S/O. JOSEPH, VADAKKANCHERY, ALATHUR TALUK. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.12045/03 IN O.P.NO.6845/03 DISMISSED 7-10-2009 Sd/-, P.Q.BARKATH ALI, JUDGE APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT ALATHUR IN I.A.NO.1068/99 IN O.S.NO.53/97 DATED 16-11-1999 EXT.P2 TRUE COPY OF THE JUDGMENT OF THE DISTRICT COURT, PALAKKAD IN CMA.NO.6/2000 DATED 28-10-2002 /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - O.P .No.6845 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October, 2009 JUDGMENT This is an original petition filed under Articles 226 and 227 of Constitution of filed by the defendant in O.S.No.53/1997 on the file of Munsiff Court, Alathur seeking to quash Exts.P1 and P2 order. 2. The suit was for recovery of Rs. 30,000/- with interest and costs from the petitioner due under a promissory note allegedly executed by the petitioner. The Munsiff, Alathur passed an ex parte decree in that suit against the petitioner on July 3, 1999. The petitioner filed I.A.No.1068/1999 to set aside the ex parte decree which was dismissed for default by the Munsiff on 16-11-1999. Ext.P1 is the copy of the said order. The petitioner filed C.M.A.No.6/2000 before the District Court, Palakkad challenging Ext.P1. The learned District Judge allowed the appeal on payment of cost of Rs. 600/-. As the petitioner was not able to deposit the costs on time, the appellate court dismissed the appeal on 26-11-2002. Ext.P2 is the copy of the said O.P.No.6845/03 Page numbers order. In this original petition the petitioner prays to quash Exts.P1 and P2 orders as illegal. 2. Counsel for the first respondent remained absent. Other respondents do not appear. Having heard the submissions of the counsel for the petitioner and having perused the records, I feel that the original petition can be disposed of as follows : 1) Ext.P2 order dated 28-10-2002 of the appellate court dismissing the appeal is set aside and C.M.A.No.6/2000 before the District Court, Palakkad is allowed. 2) The order of Munsiff Court, Alathur in I.A.No.1068/1999 dated 16-11-1999 dismissing the petition is consequently set aside and said I.A. is allowed and the ex parte decree dated July 3, 1999 is set aside and the suit is restored to file. The suit is of the year 1997. Therefore, the Munsiff is directed to dispose of the suit as early as possible, but not later than six months from the date of receipt of copy of this O.P.No.6845/03 Page numbers judgment. 4) The petitioner is directed to deposit Rs. 10,000/- before the lower court towards decree debt before the evidence commences. If that amount is not deposited, the trial court is at liberty to strike off his defence and decree the suit. The plaintiff can withdraw that amount only after the disposal of the suit. P.Q.BARKATH ALI JUDGE sv. O.P.No.6845/03 Page numbers