IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 FAO.No. 239 of 2010() --------------------- AGAINST THE ORDER IN IA.2719/2009 IN OS.71/2008 of SUB COURT, MANJERI .................... APPELLANT/PETITIONER/DEFENDANT ----------------------------------------- SREENIVASAN, MANAGING DIRECTOR, M/S.SREENIVAS WHEAT INDUSTRIES (PVT.) LTD., NO.369, M.C.ROAD, THIRUMOOLAPURAM, THIRUVALLA, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS SMT.S.SIKKY RESPONDENT: RESPONDENT/PLAINTIFF ----------------------------------- P.N.ABDUL NAZAR, S/O.KUNHIMANU HAJI (LATE), PALEPADIYAN NEDUNKALATHIL PADINHATTINMURI, PERINTHALMANNA TALUK. ADV. SRI.P.VENUGOPAL (1086/92) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * * F.A.O.No.239 of 2010 ---------------------------------------- Dated this the 1st day of December 2011 J U D G M E N T K.M.JOSEPH,J The appellant challenges the order dismissing the application to set aside the ex parte decree and the petition to condone the delay of 255 days in filing the application. The court below dismissed the application to condone the delay finding inter alia that the petitioner who was the Managing Director of the appellant company had received summons in the suit and the petitioner has not taken any valid ground to condone the delay. 2. According to the learned counsel for the appellant, the Managing Director had not received summons. The learned counsel for the respondent/decree holder would no doubt point out that notice and summons were effected on the appellant; but there was no appearance for the appellant. F.A.O.No.239 of 2010 2 3. Having regard to the need for adjudicated decision, we feel that an opportunity can be given to the appellant. Accordingly, we set aside the impugned order and the ex parte decree shall stand set aside on condition that the appellant will deposit a sum of Rs.4,00,000/- (Rupees four lakhs only) towards the ex parte decree within a period of one month from today and will pay a cost of Rs.5,000/- (Rupees five thousand only) to the learned counsel appearing for the respondent before this Court within a period of two weeks from today. In case either conditions are not complied with, the appeal will stand dismissed. If the conditions are complied with as aforesaid, the trial court will take up the suit and dispose of the same finally on or before the closure of the court for summer vacation in 2012. 4. The learned counsel for the appellant also prays that attachment order may be lifted and he is prepared to furnish security including the amount which also directed to be deposited. It is for the appellant to move before the court below for lifting the attachment and it is for that court to decide the matter. The court will certainly take up any such application filed by the appellant for lifting the attachment and pass F.A.O.No.239 of 2010 3 appropriate orders at the earliest and if possible within a period of ten days from the date of filing the application. (K.M.JOSEPH, JUDGE) (A.M.SHAFFIQUE, JUDGE) jsr // True Copy// PA to Judge F.A.O.No.239 of 2010 4 F.A.O.No.239 of 2010 5 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010