IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 CRP.No. 520 of 2007() ------------------------------- AGAINST THE ORDER DATED 09/04/2007 IN IA.1290/05,1291/05 IN OS.31/1999 of SUB COURT, MANJERI .................... PETITIONER/DEFENDANT ------------------------------------- UNNEENKUTTY, S/O. MUHAMMED HAJI, NANATH HOUSE, KARUVARAKUNDU AMSOM, CHERAMB DESOM, PULVETTA P.O., MANJERI. BY SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE BY ADV. SRI.M.A.ABDUL HAKHIM RESPONDENT(S): PLAINTIFF AND 3RD PARTY ------------------------------------------------------------------ 1. MUSALIYARATH HAMZA, S/O. KUNHIMUHAMMED, KARUVARAKUNDU AMSOM, CHERAMB DESOM, MANJERI. 2. HAMZA HAJI, S/O. MUHAMMED HAJI, NANATH HOUSE, KARUVARAKUNDU AMSOM, CHERAMB DESOM, MANJERI. R1 BY ADVS. SRI.R.RAJESH KORMATH R2 BY SRI.K.M.SATHYANATHA MENON THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.1315/2007 IN CRP. NO.520/2007 DISMISSED 11/01/2011 SD/- HARUN-UL-RASHID, JUDGE TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- C.R.P. NO. 520 OF 2007 ------------------------------- DATED THIS THE 11TH DAY OF JANUARY, 2011 O R D E R The defendant in O.S.No.31/1999 on the file of the Sub Court, Manjeri is the revision petitioner. This revision petition is directed against the common order dated 9/4/2007 in I.A.Nos.1290 and 1291/2005. The petitioner in the IA was originally not a party. He was impleaded as a third party in the suit. I.A.No.1290/05 is filed to set aside the ex parte order passed by the court on 26/7/2005. The connected I.A.No.1291/05 is filed under Order XXIII Rule 3 of the C.P.C. to set aside the compromise decree. There was a posting of the suit on 19/9/2003 for filing written statement of the petitioner. The petitioner got information from his lawyer that the suit was dismissed in May, 2004. Subsequently, the suit was restored at the instance of the plaintiff. It is submitted that the restoration petition was allowed without giving notice to the petitioner. Since the petitioner did not appear after restoration on -2- C.R.P.No.520/2007 the posting date, the court below declared him ex parte. Thereafter, the suit was decreed against the petitioner as per the compromise petition filed on 26/7/2005. The compromise petition was filed by the plaintiff and the sole defendant in the suit. 2. The court below noticed that in the restoration application no notice was given to the petitioner and that though he did not file a written statement, he is entitled to get a notice in the restoration application. The court below further observed that the failure on the part of the plaintiff to give notice in I.A.851/04 filed for restoration of the suit caused substantial prejudice to the petitioner and therefore the petitioner is entitled to approach the court for setting aside the ex parte decree passed. The court believed the version of the petitioner and concluded that the petitioner was laid up due to various diseases. 3. The petitioner is also aggrieved by the compromise decree passed by the court below. The compromise recorded no doubt is not binding on the petitioner, since he is not a party. The -3- C.R.P.No.520/2007 compromise decree stipulates a condition to realise the entire amount from the petitioner and if the decree is not satisfied the original defendant may be proceeded against. The court also referred to the proviso to Order VIIIA (4) which stipulates that the execution against a third party shall not be issued without the leave of the court until satisfaction by such defendant of the decree against him. The court after referring to various decisions held that ex parte decree passed in this case without the junction of the petitioner is causing injury to him. Since the liability is fixed on him, the contention that the agreement is vitiated is acceptable to the court. Therefore, the court accepted the contention of the petitioner and held that the decree is passed against the petitioner, who was not a signatory in the application, that the liability is incorporated against such a person, who was not party to the compromise and therefore the decree passed is bad and unenforceable. In the circumstances, the court recalled the compromise decree and allowed the application for setting aside the -4- C.R.P.No.520/2007 ex parte decree. 5. In the facts and circumstances narrated above, I find that the order passed by the court below does not require interference in exercise of the revisional jurisdiction conferred under Section 115 of the C.P.C. The court below considered all the facts and circumstances leading to the passing of the decree and ordered that set the petitioner ex parte. The order under challenge is justified under all circumstances. The Revision Petition fails and accordingly dismissed. HARUN-UL-RASHID Judge. kcv.