IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 FAO.No. 233 of 2007 AGAINST THE ORDER DATED 07/04/2007 IN IA.1333/2006 IN OS.58/2004 of SUB COURT, HOSDRUG APPELLANT: APPLICANT/JUDGEMENT DEBTOR -------------------------------------------------------- K.P.VINOD KRISHNAN, AGED 33 YEARS, S/O.K.RADHAKRISHNAN, RESIDING AT DEVEE NIVAS, ATHIYAMBOOR, BALLA VILLAGE, P.O.KANHANGAD, HOSDURG TALUK. BY ADV. SRI.T.K.VIPINDAS RESPONDENTS: RESPONDENTS/DECREE HOLDERS ---------------------------------------- 1. THE MANAGER, NORTH MALABAR GRAMIN BANK, KANHANGAD BRANCH, P.O.KANHANGAD. 2. N.P.RAVEENDRAN, ADVOCATE, HOSDURG, P.O.KANHANGAD. 3. K.SATHYA NARAYANA, AGED 41 YEARS, S/O.M.SREEPATHY, NR.KARPOORESHWARA TEMPLE, HOSDURG, P.O.KANHANGAD, KASARAGOD DISTRICT. (DELETED) RESPONDENT NO.3 IS DELETED FROM ARRAY OF PARTIES AS PER ORDER DATED 6.12.2007 IN I.A.NO.4567 OF 2008 AT THE RISK OF THE PETITIONER. R1 BY ADV. SRI.M.K.SUMOD THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- F.A.O. NO. 233 OF 2007 ------------------------------------------------------------- Dated this the 20th October, 2008 JUDGMENT K.T.Sankaran, J. The appeal is filed challenging the order in I.A.No.1333 of 2006 in O.S.No.58 of 2004, on the file of the Court of the Subordinate Judge of Hosdurg, by which the application filed by the appellant and the second defendant for setting aside the exparte decree was dismissed on the ground of delay. There was a delay of 553 days in filing the application under Order IX Rule 13 of the Code of Civil Procedure. The court below, as per the order dated 7.4.2007 in I.A.No.1309 of 2006, dismissed the application for condonation of delay. 2. The suit was filed by the North Malabar Gramin Bank against the appellant and two others. The suit was posted on several dates for filing written statement. No written statement was filed and, therefore, the defendants were set exparte and an exparte decree was passed on 2.6.2005. The appellant stated that he came to know about the decree only on receipt of the notice in F.A.O. NO.233 OF 2007 :: 2 :: the Execution Petition. The appellant was hospitalized in an Ayurvedic hospital and was continuing treatment. The court below did not accept the case put forward by the appellant as no evidence was produced to prove that he was admitted in a hospital. Learned counsel for the appellant submitted that the appellant should have been afforded an opportunity to contest the case on the merits, at least on terms. 3. After having heard the learned counsel for the appellant and the learned counsel appearing for the respondents, we are of the view that though the appellant has not properly explained the long delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure, an opportunity could be afforded to the appellant to contest the case on the merits on payment of costs. Accordingly, the orders passed by the court below are set aside and I.A.Nos.1309 of 2006 and 1333 of 2006 are allowed on condition that the appellant shall pay a sum of Rs.5,000/- (Rupees Five thousand only) as costs to the first respondent within a period of three weeks from today. The written statement shall also be filed by the defendants in the suit within a period of three weeks from today. If the appellant fails to pay the costs within the aforesaid period of F.A.O. NO.233 OF 2007 :: 3 :: three weeks, the appeal shall be treated as dismissed. If the appellant fails to file the written statement within three weeks, the trial court shall proceed as if there is no written statement. The FAO is allowed as above. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/