IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 FAO.No. 229 of 2005() --------------------- AGAINST THE ORDER IN EA 1952/03 & IA 1953/03 IN OS.367/1989 of PRL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER/12TH DEFENDANT: --------------------------------------------------------------- DR. JOHNY, S/O. CHUNGATH LATE POULOSE PUDUKKAD DESOM, THORAVU VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.T.M.CHANDRAN RESPONDENT(S): PLAINTIFF: ---------------------------------------- DEVASSY, S/O. KOLLANNUR THOMAS, REVENUE ROAD, THRISSUR VILLAGE, THRISSUR TALUK. ADV. SRI.JIJO PAUL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 229 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2009. JUDGMENT Raman, J, This appeal arises against an order in I.A. 1952 of 2003 and I.A. 1943 of 2003 in O.S.367 of 1989 on the file of the Sub Court, Thrissur. 2. The appellant received a notice in execution of the decree in O.S. 367 of 1989 while he was working as a Doctor at Irinjalakuda. Actually the decree was transferred for execution to Irinjalakuda court. On receipt of the notice, he immediately rushed to the court, which passed the decree in O.S. 367 of 1989 and sought to set aside the ex-parte decree passed against him. In that suit he was arrayed as the 12th defendant and described him as a partner of the firm, which owed money to the plaintiff. Of course, by the time the appellant received notice several years have passed by and there is inordinate delay in filing the petition for setting aside FAO.229/2005.. 2 the ex-parte decree and hence he filed an application for condonation of delay inter alia contending that he had no notice whatsoever in the suit and only when he received notice in the execution petition, he came to know about the previous proceedings. Therefore, merely because there was inordinate delay, if as a matter of fact the contention of the appellant is true, then the delay ought to be condoned. 3. According to the appellant, there is a mistaken identity of the person against whom proceedings were initiated in the suit. He was not a partner of the firm, though his name is C.P.Johny. He is not the C.P.Johny, who was a partner in the firm, against whom proceedings were initiated. According to him, he has not executed any vakalath in the suit O.S. 367 of 1989. But the court below placing heavy reliance on the vakalath and holding that the 12th defendant had executed a vakalath along with the other defendants, refused to condone delay and the application to set aside the ex-parte decree was also dismissed. Hence this appeal. FAO.229/2005.. 3 4. Annexure I produced in the case is a photostat copy of the vakalath filed in the suit. We have perused the same. The front page, where there is attestation contains only five names, who are, 1. Empire Kuries and Loans represented by John Mathai. 2. John Mathai. 3. C.K. Varghese. 4. Mariamma Samuel, and 5. Muhammed Sheriff. There is a separate sheet annexed with the vakalath, which contains names of seven other persons, including C.P. Johny. If it forms part of the vakalath, attestation should be below the names mentioned in Annexure I. Therefore, there is sufficient reason to think that he has not executed any vakalath. As a matter of fact when it is the definite case of the appellant that he has not received any notice and he has not executed any vakalath and considering his position as a Doctor, the court should have accepted the evidence of the appellant unless the same is disproved by the FAO.229/2005.. 4 evidence on record. The respondent could have examined the Advocate or proved that the appellant is the very same person as arrayed as 12th defendant. No attempt was made. In the circumstances, we find that the court below failed to exercise its jurisdiction in a proper manner by refusing to condone the delay and not allowing the application to set aside the ex-parte decree so as to enable the appellant to contest the matter on merits. In the circumstances, we allow this appeal and set aside the ex-parte decree passed against the appellant. However, this will not stand in the way of executing the decree against the other defendants. Parties may appear before the court below on 10.8.2009. P.R. Raman, Judge P. Bhavadasan, Judge sb.