IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 FAO.No. 265 of 2006() --------------------- (ORDER DATED 23.6.2004 IN IA NO.263/04 IN OS.2/2002 of SUB COURT, HOSDRUG) .................... APPELLANT/PETITIONER/DEFENDANT --------------------------------------------------- P.MOHAMMEDKUNHI, S/O. KUNHAMAD HAJI, PROPRIETOR OF HUDA TRAVELS, CHATTANCHAL P.O., THEKKIL, THEKKIL VILLAGE, KASARAGOD. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SRI.BINOY VASUDEVAN RESPONDENT(S): RESPONDENT/PLAINTIFF ------------------------------------ P.RAJAN, S/O. SHANKARAN, RETIRED SUPERVISOR, MALABAR MARKETING COMMITTEE, KASARAGODE. ADV. MANJERI SUNDERA RAJ FOR R SRI.T.SETHUMADHAVAN FOR ADDL.R2 SRI.PUSHPARAJAN KODOTH FOR ADDL.R2 SRI.K.JAYESH MOHANKUMAR FOR ADDL.R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 265 OF 2006 -------------------------------------------------------- Dated 12th August 2009 Judgment BHAVADASAN, J. Aggrieved by the order dated 23.6.2004 in IA Nos.262, 263 and 264 of 2004 in OS No.2 of 2002 before the Sub Court, Kasaragod, the petitioner before the court below has come up in appeal. 2. The suit was one for realisation of money based on a cheque said to have been issued by the petitioner, who is the defendant/appellant herein. When the cheque was presented by the respondent for encashment, it was returned for want of funds. So, he filed a suit seeking for a decree directing the appellant to pay him an amount of Rs.2,51,000/- with 9% interest from the date of the plaint till the date of payment. On failure of the appellant to appear before court, the suit was set ex parte on 29.5.2002, directing the appellant to pay an amount of Rs.2,51,000/- with interest on Rs.2,00,000/- @ 9% per annum from the date of the suit till the date of payment along with costs. FAO 265/06 2 3. Soon thereafter, the appellant filed a petition for setting aside the ex parte decree. Since there was delay in filing the said petition, another petition was also filed to condone the delay. He filed yet another petition to have the execution of the decree stayed. 4. In his petition for setting aside the ex parte decree, it was pointed out that he was unaware of the suit till 04.03.2004. Only when he received notice in the execution proceedings in EP No.11/04 proposing delivery of the residential property, he came to know that a suit has been laid against him. It is averred that the appellant was in the Shimoga jail in Karnataka in connection with CC No.190/02 of the Judicial First Class Magistrate's Court, H.R.Pura, during the said period. According to the appellant, there is no wilful laches or default on his part and it was due to reasons beyond his control that he could not appear before the court on the appointed day. It is also submitted by him that irreparable injury will be caused to him unless the suit is decided on merits. FAO 265/06 3 5. The petition was resisted by the respondent on various grounds. He submitted that the claim of the appellant was without any bona fides and the appellant had deliberately absented himself from appearing before the court below. The court below, on consideration of the materials before it, found that the claim made by the appellant is not bona fide and accordingly dismissed the petitions. Hence the appeal. 6. It is to be seen that in the meanwhile, the property belonging to the appellant was brought to sale and it was sold for a sum of Rs.3,00,100/- and it was purchased by a third party. The amount was deposited, it was withdrawn by the decree holder and the decree was satisfied. Before this court, the appellant was directed to pay Rs.3,00,100/- towards the decree amount and that has been deposited. 7. The learned counsel appearing for the auction purchaser pointed out that if the above said amount along with reasonable interest and 5% commission is paid on the sale consideration, the sale may be set aside. FAO 265/06 4 8. We notice that an amount of Rs.3,00,100/- has already been deposited. Towards interest and Commission as per law, a further amount of Rs.1,75,000/- will have to be paid. The appellant is willing to do so, but he prays for some time to pay the amount. 9. In the result, the appeal is allowed. The sale shall be set aside provided the appellant deposits a sum of Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand only) in two equal instalments, the first instalment to be paid within six weeks from today and the next instalment within six weeks thereafter. In case any default is committed in making the deposits, the appeal shall stand dismissed. The amount already in deposit can be withdrawn by the auction purchaser. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 265/06 5 FAO 265/06 6