IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 FAO.No. 78 of 2009() -------------------- AGAINST THE ORDER DATED 05/11/2008 IN IA 1401/2008 AND IA 1404/2008 IN OS.193/2006 of SUB COURT, OTTAPPALAM .................... APPELLANT/PETITIONER/DEFENDANT: --------------------------------------------------- VASUDEVAN, S/O.KRISHNAN EZHUTHASSAN, AGED 54 YEARS, KOLLAYIL, THIRUVEGAPPURA DESOM, OTTAPALAM TALUK, PALAKKAD. BY ADV. SRI.K.R.VINOD RESPONDENT/RESPONDENT/ PLAINTIFF: ------------------------- KUNHIPPA, S/O.ABOOBACKER, AGED 69 YEARS, NHANGATTIRI DESOM, ECHARATH VALAPPIL HOUSE, THRITHALA, OTTAPALAM. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.S. GOPINATHAN, JJ. ----------------------------------- F.A.O. NO.78 of 2009 ----------------------------------- DATED:MARCH 23, 2009. JUDGMENT Raman, J. The appellant is the defendant in the suit OS 193/2006 on the file of the Sub Court, Ottapalam, instituted by the respondent herein as the plaintiff, for recovery of money. The appellant entered appearance in the suit and engaged his advocate by filing a vakalath. However, he did not file a written statement. Eventually he was declared ex parte and a decree was passed. The decree was sought to be executed and pursuant to the notice received, the appellant rushed to the court below seeking to set aside the ex parte decree passed against him after condoning the delay since by that time delay has already occurred. The court below dismissed the delay petition and consequently the petition to set aside the ex parte decree also was dismissed. The appellant thereafter filed a CMA before the District Court which F.A.O. NO.78 of 2009 :2: was subsequently withdrawn as the proper forum for filing the appeal is this Court. 2. The respondent has already entered appearance since a caveat is filed. We heard the respondent even at this stage. 3. The court below, in the impugned order, has observed that the reason shown for the absence in the trial and also for the delay is that the appellant is stated to have said that he came to know about the suit and the decree only when warrant was issued against him. A copy of the affidavit filed before the court below in support of the petition for condonation of delay was made available to us by the counsel appearing for the respondent. We have perused the same. We find that, as a matter of fact, the appellant had admitted that he entered appearance in the suit, but subsequently he was declared ex parte, about which he came to know only when he received notice in the execution petition. Therefore it is not a case where the appellant pretended ignorance about the pendency of the suit as understood by the court below. Further, the delay for seeking to set aside the ex parte decree is only 131 days and various other sec.138 proceedings F.A.O. NO.78 of 2009 :3: are pending between the parties. Taking into consideration all the facts, we think that in the interests of justice, the delay ought to be condoned and the appellant should be given an opportunity to contest the matter on merits, however, on terms. Accordingly the order of the court below is set aside. The decree passed by the court below will also stand set aside and the suit will stand restored to file, however, on condition that the appellant shall deposit an amount of Rs.50,000/- before the court below on or before 8.4.2009 and furnish security for the principal amount claimed in the suit. On such compliance, the order setting aside the decree passed by the court below will come into operation, failing which, the appellant will lose the benefit of this order. P.R. RAMAN, JUDGE. P.S. GOPINATHAN, JUDGE. Issue emergent copy. mt/-