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 24TH MAY 2011 / 3RD JYAISHTA 1933 FAO.No. 258 of 2009() --------------------- AGAINST THE ORDER DATED 25/03/2008 IN IA.2180/2007 IN OS.77/2001 of SUB COURT, MAVELIKKARA .................... APPELLANT/PETITIONER/DEFENDANT: ------------------------------------------ SUMATHI, AGED 72, D/O.BHARATHI, SREE NILAYATHIL VEEDU, NANGIARKULANGARA, CHINGOLI VILLAGE, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR SRI.S.MOHANAN RESPONDENT/COUNTER PETITIONER/PLAINTIFF: ----------------------------------------------------- RAJU, S/O.KUTTAPPAN, YAVANIKA VEEDU, VETTUVENI MURI, HARIPPAD P.O., ALAPPUZHA. ADV. SRI.S.SHANAVAS KHAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- C.M.Appl.1739 OF 2009 & F.A.O.258 OF 2009 ------------------------------------ Dated this the 24th day of May, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.C.M.Appl.1739/09 is filed seeking condonation of delay of 430 days in filing this appeal against an order, by which, the court below dismissed two petitions seeking to set aside an ex parte decree for specific performance of an agreement for sale and for condonation of delay in making such application. At that stage, the delay was 364 days. For the elaborate reasons stated in the impugned order, the court below noticed that the case has a checkered career and there was no reason to condone the enormous delay of 364 days in applying to set aside the ex parte decree or to set aside such decree. 2.When this appeal came up before us with an application seeking condonation of delay of 430 days in filing this FAO.258/09 2 appeal, the plaintiff respondent filed a counter affidavit pointing out that no satisfactory reason has been shown to have the delay condoned. With this, we noticed that there was an element of settlement and the matter was referred for mediation. That failed. 3.Thereafter, certain discussions were had on the basis of deliberations in the sitting in chambers and it was agreed by the parties that the transaction could be settled for Rs.7 lakhs and on the decree being set aside, the plaintiff may be given refund of the entire court fee paid in the suit and the stamp papers on which the sale deed is engrossed may also be ordered to be released for cancellation with refund in terms of law. The balance sale consideration deposited by the plaintiff could also be considered for refund in that event. These matters are recorded by us in order dated 8.12.2010. FAO.258/09 3 4.However, in spite of different postings, deposits were not made in consonance with the said undertaking, except to the extent of Rs.3.5 lakhs. 5.It is in the aforesaid context, we have now looked into the merits of the matter. Learned counsel for the appellant states today that there is no response from his client. Yet we perused the affidavit and also heard submissions on both sides, including on the merits of the matter. 6.The appellant was set ex parte, initially, on 1.6.2001. That order was set aside and the defendant filed a written statement. The defendant contended that she had taken an amount of Rs.2 lakhs from the plaintiff and that the transaction is purely a money transaction and there was no agreement for sale of any immovable property. The court below, on the basis of that defence, proceeded with the trial and after completing pre-trial steps, posted the case in the FAO.258/09 4 special list for trial on 7.12.2007. On that day, the defendant and her counsel were absent and the suit was decreed. It was long thereafter that, with a delay of 364 days, the defendant moved for setting aside the ex parte decree. The court below noted that in the mean while, the plaintiff had moved for having a sale deed executed and had filed I.A.No.490/07 on 19.3.2007 seeking permission to deposit balance consideration and this petition also was not opposed by the defendant in spite of notice thereon. The plaintiff had deposited the balance sale consideration of Rs.2,52,000/- on 18.9.2007 and on 1.10.2007 the plaintiff had filed I.A.No.1684/07 to have the sale deed executed through court. The defendant did not object to that petition also though notice was served on her on that petition. The plaintiff thereafter produced draft sale deed with notice to the defendant who did not object to that also and ultimately the sale deed was executed through court. The court below was not prepared to believe the version that the defendant FAO.258/09 5 was incapacitated from appearing and contesting the litigation. 7.Having considered the materials on record, we do not find any merit in the appeal or in the application for condonation of delay. Accordingly, the C.M.Application is dismissed. As a consequence of the dismissal of the C.M.Application, the appeal is also dismissed. 8.During the pendency of this litigation, the plaintiff had obtained an amount of Rs.1,50,000/- from the defendant under orders of this Court. The plaintiff shall deposit an amount of Rs.1,30,000/- out of that before the court below which will also be released to the defendant. Following such deposit, the court below will effect delivery of the property to the plaintiff and on recording such delivery, would release to the defendant the amounts due to her in terms of the FAO.258/09 6 decree and this order. The balance amount of Rs.20,000/- with the plaintiff will be treated as costs of this litigation. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.24/5.