IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 FAO.No. 76 of 2008() -------------------- AGAINST THE ORDER DATED 13/12/2007 IN EA.603/2006,EP.218/1999 IN OS.27/1995 OF PRINCIPAL SUB COURT, PALAKKAD PETITIONER/JUDGMENT DEBTOR ------------------------------------------- CHANDRASEKHARAN, S/O.KRISHNAN AGED 65 YEARS, CHERINGAL, PATTANCHERRY CHITTUR TALUK, PALAKKAD. BY ADV. SRI.K.P.BALAGOPAL RESPONDENTS: RESPONDENT/DECREE HOLDER ------------------------------------- JABBAR, S/O.ISMAIL RAWTHER AGED 56 YEARS, ATHIKURUSSI KULAMBU VADAVANOOR AMSOM, CHITTUR TALUK, PALAKKAD BY ADV. SRI.VINOD KUMAR.C THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O. 76/2008 ORDER ON I.A. NO. 1239/2008 IN F.A.O. 76/2008 // DISMISSED // 7.8.2008. SD/-, P.R. RAMAN, JUDGE. SD/-, T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE. knc/- P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. 76 OF 2008 = = = = = = = = = = = = DATED THIS, THE 7TH DAY OF AUGUST, 2008. J U D G M E N T Raman, J. The appellant is the judgment debtor and the petitioner in E.A. 603/2006 in E.P. 218/1999 in O.S. 27/1995 on the file of the Sub Court, Palakkad. The said application was filed seeking restoration of an earlier application E.A.57/2006, which was dismissed on 29.9.2006. The suit was one for realisation of money which was compromised and a compromise decree was passed. But the decree was not satisfied by paying the money. Hence the execution petition was filed. In the execution, property belonging to the judgment debtor was brought to sale. The sale took place and confirmation is pending. It was then that the application was filed for setting aside the sale which happened to be3 dismissed for default. It is for restoration of that application, that the present application is filed. The court below held that E.A. 57/2006 was dismissed on 29.9.2006 after finding that the petitioner absented himself and no evidence was adduced in support of his application to set aside the sale. Thus, there was no grounds FAO 76/2008 :2: made out for setting aside the sale besides being absented on which day the case was posted. The present application filed for restoration states that the lawyer was engaged in the Family court. But the court below held that there is no evidence to show that the lawyer was engaged in another court or any other lawyer was entrusted for representing the matter. On those grounds, the application was dismissed. 2. We have heard both sides. The specific contention of the appellant in the present application, before the court below, was that his lawyer was engaged in another court. This was however, not disputed in the counter affidavit filed by the respondent. Normally, when both the lawyers are practising in the same court, if as a matter of fact, in case there is any dispute regarding this averment, the respondent would have certainly urged such a contention in the counter affidavit. However, the grounds as urged in the application for restoration shows that the party as such was not negligent in the matter of appearing in court and it was the counsel who was absent when the case was taken up for consideration, for which the party should not be made to suffer. It has to be noticed that there is a compromise decree and as such the amount as compromised ought to have been paid by the judgment debtor. When the matter came up for consideration before this Court, counsel sought time for settling the matter FAO 76/2008 :3: and we granted one months time; but despite such time granted the matter was not settled. 3. We have heard both sides. In the circumstances, we set aside the order impugned in this appeal and direct the appellant to deposit the EP amount before the court below within three weeks from today, in which event the application will stand restored. In case of failure in depositing the amount as aforesaid, the court below may proceed to confirm the sale. The F.A.O. is disposed of as above. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-