IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 FAO.No. 40 of 2010() ------------------------------ AGAINST THE ORDER IN IA 17 /2010 IN OS.255/2005 of PRINCIPAL SUB COURT,KOLLAM . .................... APPELLANTS/PETITIONERS/DEFENDANTS ----------------------------------------------------- 1. MUHAMMED RAFI, KARUMBALIL VEEDU, KARPOORAM CHERRY, VADAKKEVILA VILLAGE, KOLLAM. 2. ANZAR, DO. DO. 3. SHEEJA ANZAR, W/O.ANZAR, DO. DO. 4. NAVAS KHAN, PULI VEEDU, VADAKKEVILA VILLAGE, KOLLAM. BY ADV. SRI.TOM K.THOMAS RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------------------- K.SATHYANADAN, SUVARNALAYAM VEEDU, ASRAMAM, KOLLAM. BY ADVS. SRI.V.V.RAJA SRI.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ FAO No.40 of 2010 ------------------------------------------------------------------------ Dated 13th December 2010 Judgment Thottathil.B.Radhakrishnan, J. This appeal is against an order by which the court below has dismissed the application to set aside the ex parte decree. That was done as a consequence of the dismissal of an application to condone the delay of four years and 19 days in applying to set aside the ex parte decree. While the learned counsel for the appellant may be justified in saying that the order appears to be cryptic inasmuch as it does not in so many terms, states the reasons either to dismiss the application for condonation of delay or to refuse the request to set aside the ex parte decree, at the best, all that the appellant could say is that he did not have appropriate opportunity to establish his case as pleaded in the application for condonation of delay and in the application to set aside the ex parte decree by adducing further and appropriate legal evidence before the court below. Though scant, it is not as if the learned Judge has not expressed the view that the explanation given for condonation of delay is not satisfactory, but when orders are passed in jurisdiction where FAO 40/10 2 appeals are provided to superior courts, it is one of the inbuilt safety valves in the exercise of jurisdiction that the orders should reflect the reasons. This is because the appellate court should know as to what weighed in the mind of the court even in the matter of exercise of jurisdiction relying on Order IX Rule 13 of CPC and Section 5 of the Limitation Act etc. 2. In terms of the earlier interim orders, an amount of Rs.1 lakh has been deposited by the appellants before the court below. We are inclined to think that if the entire decree debt is deposited by the appellant before the court below, the ex parte decree could be set aside on further condition that the respondent would be paid an amount of Rs.5,000/- (Rupees Five Thousand only) as costs and the decree debt so deposited would be released to the decree holder on condition that the decree holder furnishes security to the satisfaction of the court below for such amount. This is to enable the appellant to have an opportunity to contest the suit on merits. In the result, we allow this appeal on the aforesaid terms and grant the appellants one month's time from today to comply with the conditions as to the deposit of the balance amount. The parties are directed to appear before the court below on 11.01.2011. We FAO 40/10 3 also clarify that if the appellants have paid any amount as per any proceedings in relation to the prosecution for the alleged offence under S.138 of the Negotiable Instruments Act in respect of the transaction, which is the subject matter of this suit, it would be sufficient that the appellants pay only the remaining amount or furnish security for the same, i.e., after setting off the amount paid as compensation, if any, in the criminal proceedings. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 40/10 4