IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).No. 26225 of 2010(O) -------------------------- CMA.94/2008 of DISTRICT COURT, KOTTAYAM OS.671/2003 of PRL.MUNSIFF COURT., KOTTAYAM .................... PETITIONER: --------------- MR.THANKAPPAN, AGED 50 YEARS, S/O. NARAYANAN, KUNNATHUPARAMBU HOUSE, PARIYARAM P.O., KADAMURI, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.K.S.ARUN KUMAR SRI.P.P.BIJU RESPONDENTS: --------------- 1. M/S.P.V.C.CHIT FUND REP.BY ITS MANAGING PARTER ITTY IYPE CHERIYAN, KOSAMATTAMPUTENPURA HOUSE, NETTASSERRY KARA, VIJAYAPURAM VILLAGE, KOTTYAM TALUK, KOTTAYAM DISRICT - 686002. 2. E.N.SURESH S/O.K.R.NARAYANAN,THANIKKAL HOUSE, MANGANAM KARA, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK, KOTAYAM DIST. 3. T.R.RAJUMON S/O.K.K.RAMDAS, THANNIKKALPARAMBIL HOUSE, NATTASSERY KARA, NATTASERRY VILLGE, KOTAYAM TALUK, KOTTAYAM DIST. 4. P.J.SOMAN S/O. JOY, PUTHENPURACKAL HOUSE, MUNDAKKAYAM KARA, MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DIST. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.26225 of 2010 --------------------------------------- Dated this 19th day of August, 2010 JUDGMENT Defendant No.3 in O.S.No.671 of 2003 of the court of learned Principal Munsiff, Kottayam is the petitioner before me. He, along with others suffered an ex parte decree for payment of money and in the course of execution came up with an application to set aside the ex parte decree and to condone the delay of One year, 11 months and 29 days in filing the application stating that he was not served with summons in the suit and that he has valid contentions to be raised in the suit. The applications were opposed by respondent No.1. The applications did not find favour with learned Munsiff who dismissed the same. That order was confirmed by the learned District Judge in C.M.A.No.94 of 2008. Hence this writ petition. Learned counsel contends that there was no proper service of summons on petitioner and he was under a wrong legal advise and in these circumstances could not file application to set aside the ex parte decree on time. Learned counsel states that petitioner has valid contentions to be urged in the suit and he may be given an opportunity to contest the same, if necessary on terms of cost. W.P.C.No.26225 of 2010 : 2 : 2. I have gone through the judgment/order under challenge and other materials placed before me. It is true that petitioner has a contention that he was not served with summons in the suit and to support that contention, he stated that his house name is 'Kakkuzhiyil' while in the plaint and in the summons hs house name is stated as 'Kunnumpurath'. Learned District Judge has referred to that contention and observed that the said contention is prima facie untenable since it is admitted that in the execution petition petitioner was served with notice and in that execution petition, house name of petitioner is given as 'Kunnumpurath'. If that be so, contention that summons in the suit in the same house address was not served, is difficult to be accepted. 3. Assuming that petitioner was not be served with summons in the suit, it is an admitted fact that he received notice on the execution petition on 17-07-2006 and filed objection to that petition. But the application to set aide ex parte decree with application to condone the delay was filed only on 15-08-2008, ie. two years and one month after he admittedly received notice in the execution petition. There is no justifiable explanation for the delay from 17-07-2006 to 15-08-2007. It is not as if any mistake committed by the lawyer is liable to be condoned while considering the request for condonation of delay. Having regard to the facts W.P.C.No.26225 of 2010 : 3 : and circumstances I am not inclined to think that the delay has been satisfactorily explained. The Supreme Court in Ramlal Vs. Rewa Coal Fields Ltd. (AIR 1962 SC 361) has held that discretionary jurisdiction of the court to condone the delay arises only when sufficient cause is shown. In the absence of that, question of exercise of discretionary power does not arise. On going through the judgment/order under challenge I am not persuaded to think that interference in exercise of supervisory jurisdiction is warranted. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-