IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 FAO.No. 157 of 2009() --------------------- AGAINST THE ORDER DATED 03/12/2008 IN IA.1346/08,1347/08 IN OS.222/2001 of SUB COURT, MAVELIKKARA .................... APPELLANT/PETITIONER/DEFENDANT -------------------------------------------------- SUKUMARAN, AGED 63 YEARS, S/O.GOVINDAN KANDALIL POCHAYIL VEEDU, ERICKAVU MURI, KUMARAPURAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.B.RENJITHKUMAR SRI.PADMALAYAN.P.P. RESPONDENT(S): CR.PETITIONER/PLAINTIFF -------------------------------------- SOMADATHAN, AGED 63 YEARS, S/O.PADMANABHAN, SUNIL NIVAS, ERICKAVU MURI, KUMARAPURAM VILLAGE, ALAPPUZHA DISTRICT. ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R1 SRI.A.R.DILEEP FOR R1 SMT.SURYA SASI FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2304/09 IN F.A.O.NO. 157 OF 2009 DISMISSED SD/- K.M.JOSEPH, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE 22.3.2011 /TRUE COPY/ K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No. 157 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of March, 2011 JUDGMENT Joseph, J. The appellant is the defendant in a suit for money filed by the respondent. The suit was decreed ex parte. The appellant filed I.A.Nos. 1346 and 1347 of 2008 to set aside the ex parte order and to condone the delay in filing the said application. There is a delay of 394 days in filing the application. The Sub Judge, Mavelikkara dismissed those applications. The appellant challenges the said order in this appeal. 2. According to the appellant he was prevented from appearing in the court on account of the fact that he was taking rest because of diabetic ulcer. The medical certificate produced by the appellant would reveal that the appellant was under treatment for diabetic ulcer from 16.2.07 to 18.2.2007. In the certificate it is mentioned that the appellant will be medically fit F.A.O.No. 157 of 2009 2 to resume duty from 19.2.2007. Therefore his case was disbelieved. 3. Learned counsel for the respondent submits that the delay is 494 days and not 394 days. 4. We would think that we should take a lenient view in the matter. But it cannot be an unconditional order. It is pointed out that the property has already been attached. 5. In such circumstances, we allow the appeal and the ex parte decree stands set aside on condition that the appellant will pay a sum of Rs.4,000/- as cost to the learned counsel appearing for the respondent in this court, within a period of two weeks and produce a memo to that effect. If the cost is not paid, the appeal will stand dismissed. If the cost is paid, the court below shall take up O.S.No. 222 of 2001 and dispose of the same finally on or before 31.8.2011. (K.M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm