IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 FAO.No. 267 of 2009() --------------------- AGAINST THE ORDER DATED 20/03/2009 IN IA 83/09 IN OS.152/2008 of SUB COURT, CHENGANNUR .................... APPELLANTS/PETITIONERS/DFENDANTS ---------------------------------------------------- 1. ALEYAMMA JOHN, KALEECKAL PADI PUTHEN VEETTIL GRACE BHAVANIL, ANGADICKAL, CHENGANNUR. 2. ANIL P.JOHN, 323 RAINTREE DRIVE SUNNYVALE TX-75182, U.S.A., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER-MOTHER ALEYAMMA JOHN RESIDING AT KALEECKAL PADI PUTHEN VEETTIL GRACE BHAVANIL, ANGADICKAL, CHENGANNUR. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): CR.PETITIONER/PLAINTIFF -------------------------------------- SHAJI GEORGE, THUNDIKKATTIL HOUSE, ANGADIKKAL MURI, CHENGANNUR. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No. 267 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of November, 2009 JUDGMENT Joseph, J. This appeal is directed against the order passed in a petition filed under Order IX Rule 13 C.P.C. to set aside the ex parte decree. 2. We heard the learned counsel for the appellants and the learned counsel for the respondent. 3. The court below found that the reasons stated for the absence of the appellants is that the lawyer is laid up. The court noted that no corroborative medical evidence was adduced. The court also noted that the advocate did not file an affidavit in support of the case that he was laid up due to serious illness. It is found that there is no sufficient cause. F.A.O.No. 267 of 2009 2 4. The learned counsel for the appellants would point out that actually the advocate was laid up and later on he passed away. 5. We feel that the appellants should be given an opportunity to contest the matter on merits. 6. The appeal is accordingly allowed. The impugned order will stand set aside and the application filed by the appellants will stand allowed on condition that the appellants pay Rs.1500/- as cost within a period of one month and produce a memo in this court. We further direct that on payment of the cost, the impugned order will stand set aside and the court will dispose of the suit finally on or before 31.3.2010. (K. M. JOSEPH) Judge F.A.O.No. 267 of 2009 3 (M.L. JOSEPH FRANCIS) tm Judge