IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 CRP.No. 106 of 2010() --------------------- CMA.90/2006 of I ADDL. DISTRICT COURT, THIRUVANANTHAPURAM OS.457/2001 of PRINCIPAL MUNSIFF COURT,THIRUVANANTHAPURAM (IA 2513/2006 ORDER) .................... PETITIONER(S): APPELLANT/PETITIONER: ---------------------------------------------------------------- K.R.MURALEEDHARAN, KUNNIL VEEDU, KURUVANKUZHY, THATTATHUMALA P.O., KILIMANOOR. BY ADV. SRI.SUBHASH SYRIAC RESPONDENT(S): RESPONDENT/RESPONDENT: ----------------------------------------------------------------------- DIVAKARAN, S/O.RAMAKRISHNAN, VASUDEVAVILASAM, KARIKULAM, PUTHIYATHURA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.V.ANIL THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 106 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of March, 2011. ORDER Shorn off unnecessary details, the short facts necessary for the disposal of this Civil Revision Petition are as follows: Petitioner herein suffered an ex-parte decree for money from the Munsiff's Court, Thiruvananthapuram. Later he moved an application as I.A.2513 of 2006 in O.S.457 of 2001 to have the ex-parte decree set aside. The ground taken was that he had not been served with summons and he was not aware of the pendency of the proceedings in the suit. When notice in execution under Order XXI Rule 22 of Code of Civil Procedure was served on him, he came to know about the decree against him. C.R.P.106/2010. 2 2. The learned Munsiff on an evaluation of the materials before him came to the conclusion that summons was infact served on the petitioner and there was no substance in his submission and dismissed the petition. The matter was carried in appeal by the petitioner as C.M.A. 90 of 2006. To the shock of the petitioner, the lower appellate court dismissed the appeal holding that the petition filed by the petitioner before the court below to have the ex-parte decree set aside was filed long after the period prescribed by law and there was no petition to condone the delay. 3. The petitioner, in this revision petition assails the said finding. It is pointed out that at no point of time he was apprised of the fact that the first petition was filed out of time and needed to be accompanied by a petition to condone the delay. 4. This court had the opportunity to look into the petition as well as the counter filed by the respondent to the petition to set aside the ex-parte decree. The counter does not made mention of any delay in filing the petition to set C.R.P.106/2010. 3 aside the ex-parte decree. It is also significant to notice that the trial court also does not refer to this aspect at all. So the claim of the petitioner that he was taken by surprise when the lower appellate court dismissed the appeal on the ground that he had not filed a petition to condone the delay in the trial court seems to be justified. At any rate, he could have been given an opportunity to contest the matter on merits. Whatever that be, it is felt that a remand for this purpose would be further dragging on the proceedings and it is only proper that the petitioner be given an opportunity to have the matter heard on merits subject to certain conditions. In the result, this revision petition is allowed, the impugned order is set aside and the suit will stand restored to file on condition that the petitioner furnishes security for the decree amount to the satisfaction of the trial court and an amount of Rs.2,500/- towards the cost to the counsel appearing for the respondent before this court. The security shall be furnished within one month from today and the C.R.P.106/2010. 4 costs shall be paid within three weeks from today. The parties shall appear before the trial court on 24.5.2011. P. BHAVADASAN, JUDGE sb.