IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 FAO.No. 73 of 2011() -------------------- AGAINST THE ORDER IN IA 272/09 & 271/09 IN OS.62/2006 of SUB COURT, PATHANAMTHITTA .................... APPELLANT/PETITIONER/DEFENDANT -------------------------------------------------- JOSE OOMEN, POYYANIL NADIVILE MURIYIL, KOZHENCHERRY MURI, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. REPRESENTED BY THE POWER OF ATTORNEY HOLDER GIGI JOSE OF --DO-- --DO-- --DO-- BY ADV. SRI.N.N.SASI RESPONDENT(S): COUNTER PETITIONER/PLAINTIFF ------------------------------------------- JOJY J.VARGHESE, THUNDIYATH HOUSE, EDASSERRIMALA MURI, ARANMULA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. ADV. SRI.V.PHILIP MATHEW THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- F.A.O.No.73 OF 2011 ------------------------------------ Dated this the 7th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The defendant in a suit filed in the year 2006 on a bounced cheque allegedly issued in February, 2005 for Rs.7 lakhs in discharge of a legal liability allegedly due, is the appellant. He challenges an order by which the court below declined to condone the delay in entertaining the application to set aside the ex parte decree. 2.Going by the submissions on both sides and the materials on record, including those reflected by the impugned order, it appears that the defendant was facing proceedings before the criminal court for an offence punishable under Section 138 of the Negotiable Instruments Act on the basis of the same cheque. The said case has been included in the long pending register on account of continuous default of the FAO.73/11 2 appellant in appearing before the court, he having been consequentially declared as a proclaimed offender. 3.In so far as the suit is concerned, it appears that the defendant appellant remained ex parte at an earlier instance and after paying the balance court fee, the suit was decreed. The case was re-opened and the matter put again to trial. The suit was listed for settlement. That did not materialize. Thereafter, he was contesting the proceedings before the court below through power of attorney. It appears that evidence was adduced and ultimately on the date of hearing, there was no appearance. This led to the suit being again decreed. 4.Though the appellant tried to show certain reasons for his absence and also for the delay in applying to have the decree set aside, pleading that it was an ex parte decree, the court below came to the conclusion that the decree is essentially one passed on merits and after recording evidence and therefore, Order IX Rule 13 does not apply. FAO.73/11 3 Certain submissions are made before us also on the question as to whether the decree would fall within the explanation to Rule 2 of Order XVII CPC. Be that as it may, we are inclined to think that before the conclusion of trial, the defendant or his power of attorney was prepared to contest the case which could have been entertained by the court below as one which is an ex parte proceedings and complete justice could have been offered to the defendant by providing trial. However, that could have been only on terms. 5.Taking the facts and circumstances into consideration, we are of the view that the application for condonation of delay and the application for setting aside the ex parte decree as filed before the court below could be allowed on terms and resultantly, this appeal would also stand allowed on terms. 6.In the result, this appeal is allowed setting aside the impugned decree and allowing I.A.Nos.271/09 and 272/09 in O.S.62/06 on the file of the Subordinate Judge, Pathanamthitta on condition that the appellant furnishes FAO.73/11 4 security to the satisfaction of the court below for the entire decree debt within a period of 45 days from today and pays an amount of Rs.25,000/- as costs to the respondent plaintiff, payable to his counsel before this Court within a period of three weeks from now. In the event of the conditions being complied with and the parties consequentially appearing before the court below, the learned subordinate Judge will make an endeavour to expedite the final disposal of the matter it being a money suit of the year 2006. The parties are directed to appear before the court below on 5.8.2011 and the court below will then proceed only if the conditions as aforesaid are satisfied. If any of the conditions as aforesaid is not complied with, this appeal will stand dismissed automatically. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.13/6.