IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 FAO.NO. 87 OF 2010() -------------------- {IN IA 1297/2009 IN OS.183/1992 OF SUB COURT, KOTTARAKKARA} .................... APPELLANT(S):/PETITIONER/4TH DEFENDANT --------------------------------------------------- JALALUDEEN, POWER HOUSE ROAD, T.C. 38/13/68. BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA) SRI.SYAM J SAM RESPONDENT(S): PLAINTIFFS/COUNTER PETITIONERS ------------------------------------------------------------- 1. KUNJAMMA MATHAI, MANAPURATHU BUNGALOW, PUNALUR. 2. DR. ALEXANDER MATHEW, OF DO-DO- 3. PEERUKANNU, U.L.R.A. 5, D.P.I. JUNCTION, VAZHUTHAKKADU, THIRUVANANTHAPURAM. 4. SALIM, OF -DO- 5. BASHEER, OF -DO- (LATE) R1 BY ADV. SRI.K.K.JOHN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------------- C.M.Application No.522 of 2010 and F.A.O.No.87 of 2010 ------------------------------------------------- Dated this the 6th day of August, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. The fourth respondent in a suit for recovery of money is the appellant/applicant. 2. The C.M. Application is filed seeking condonation of delay of 34 days in filing the appeal against an order refusing to set aside an ex parte decree. The application to set aside the ex parte decree was filed with an admitted delay of 723 days. 3. The facts as it appear to, going by the submissions and the pleadings before the court. The decree was passed on 31.7.2007 in a suit of 1992. The matter went even to the superior courts different rounds. The earlier application to set aside the ex parte decree was allowed on terms. This court, on a writ petition by the plaintiff, enhanced the costs. Such costs was not paid. The application from which the present appeal arises was then filed. The explanation for the delay of 723 days F.A.O.No.87 of 2010 ::- 2 -:: is that the 4th defendant, who alone had filed the application, did not know about the decree because it was his brother and father who were conducting the suit. The court below, going by the materials, held that they resided in the same house. We have also looked at the address of the appellant as it occurs in the impugned order, as also in the appeal memorandum. He is Jalaludeen, Power House Road, T.C.13/68. We wonder as to which postman in which District, in which State would have been able to deliver notice to him. 4. With the aforesaid, we also notice that the appellant did not tender oral evidence before the court below. 5. We are satisfied that the impugned order has necessarily to stand. C.M. Application and FAO are meritless. The same fail and are dismissed. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.