IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 FAO.No. 314 of 2011 --------------------------- AGAINST THE ORDER DATED 21/06/2011 IN IA.790/2009 IN OS.128/2005 of SUB COURT, CHERTHALA .................... APPELLANT (S): PETITIONERS: --------------------------------------------- 1. M/S.TAJ ENTERPRISES, X-RAY JUNCTION, CHERTHALA, REPRESENTED BY ITS PARTNERS:- I) ANTONY VARGHESE II) K.A.JOSEPH 2. ANTONY VARGHESE, KUZHIVELIL HOUSE, THEVARVATTOM MURI, THYKATTUSSERRY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 3. K.A.JOSEPH, KOTTAKATTU HOUSE, PALLIPPURATHUSSERIKKARA, VAIKOM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 4. THRESSIAMMA VARGHESE, KUZHIVELIL HOUSE, MANAPPURAM P.O., THYKATTUSSERRY VILLAGE, CHERTHALA TALUK, ALAPUZHA DISTRICT. 5. LISSAMMA VARGHESE, DO. HOUSE, DO. DO. 6. SIBICHAN, S/O. VARGHESE, DO HOUSE, DO. DO. BY ADV. SRI.P.S.KRISHNA PILLAI SMT.S.ANJUSHA RESPONDENT(S): COUNTER PETITIONER: ------------------------------------------------------------ THE FEDERAL BANK LTD., BRANCH, CHERTHALA, REPRESENTED BY ITS MANAGER, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) SMT.LIZA P.CHERIAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- F.A.O.No.314 of 2011 ----------------------------------------- Dated, this the 8th day of November, 2011 J U D G M E N T K.M.Joseph, J. Appellants are the defendants in a suit for money instituted by the respondent Bank. The suit has been decreed exparte. The appellants filed application to set aside the exparte decree under Order 9 Rule 13 of the Code of Civil Procedure. The court below rejected the application. Hence the appeal. 2. We heard the learned counsel for the appellants and learned counsel for the respondent Bank. The case no doubt, set up by the appellants before the court below was that, due to snake-bite the deponent of the affidavit could not appear in Court. Learned counsel for the appellants would submit that the appellants are prepared to pay Rs.3 lakhs (Three lakhs) within three weeks from today and that amount can be withdrawn by the respondent Bank. He would further submit that appellants are also prepared to deposit Rs.10,000/- (Ten thousand) every month and that the exparte decree may be set aside and an opportunity may be given. 3. Learned counsel for the respondent Bank submits that he has no objection in giving time to the appellants to pay off the amounts on certain conditions. Having heard the learned FAO 314/2011 -2- counsel for the parties we feel that an opportunity should be granted to the appellants, but only on certain conditions. Accordingly, we allow the appeal, set aside the impugned order on condition that the appellants will pay a sum of Rs.3 lakhs (Three lakhs) to the respondent Bank within a period of three weeks from today. Further, the appellants will pay a sum of Rs.10,000/- on or before 15th of every month starting from 15.12.2011. If, Rs.3 lakhs is paid within three weeks and further sum of Rs.10,000/- is paid on or before 15.12.2011 alone the exparte decree will stand set aside. If both the conditions are satisfied, the Sub Court, Cherthala will take up O.S.No.128/2005 and dispose of the same before the closure of Courts for summer vacation-2012. We make it clear that, the appellants must continue to pay Rs.10,000/- on or before 15th of succeeding months, ie., from January, 2012. If either of the amount of Rs.3 lakhs or Rs.10,000/- is not paid as aforesaid, the appeal will stand dismissed and the exparte order will stand. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS