IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 OP(C).No. 1098 of 2010(O) ---------------------------------------- CMA.32/2008 of DISTRICT COURT,THODUPUZHA OS.332/2006 of MUNSIFF COURT,MUVATTUPUZHA (EP.48/2010) .................... PETITIONER -------------------- SIMIOS S/O.FRANCIS,KUNNATH HOUSE, VAHZKULAM P.O.,VAZHAKULAM BY ADVS. SRI.P.V.ELIAS SRI.K.UNNI VARGHESE RESPONDENT(S): ---------------------- TOMY S/O.SCARIA, KANNATTU HOUSE,ANCHIRI P.O.,ALAKODE, THODUPUZHA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1098 of 2010 ==================================== Dated this the 13th day of December, 2010 J U D G M E N T Defendant in O.S. No.332 of 2006 of the court of learned Munsiff, Muvattupuzha is the petitioner before me. He suffered an ex parte decree on 17.07.2007 and filed application to set aside that ex parte decree. Learned Munsiff was not inclined to accept the prayer and dismissed the application. Petitioner took up the mater in appeal – C.M.A. No.32 of 2008. Appellate court allowed the appeal and application to set aside the ex parte decree as per judgment dated 28.04.2009 on condition of petitioner depositing Rs.10,000/- in the trial court on or before 01.06.2009. The amount was not deposited and consequently the C.M. Appeal stood dismissed. This petition under Article 227 of the Constitution is filed challenging that part of the judgment in C.M.A. No.32 of 2008 directing deposit of the amount. Learned counsel submits that petitioner was not able to deposit the amount on time on account of financial stringency as he was out of station and as the file was misplaced. Petitioner alternatively requested time to deposit the amount and contest the suit. O.P(C) No.1098 of 2010 -: 2 :- 2. Having heard learned counsel and going through the order and judgment under challenge I am not inclined to allow any of the prayers made. The suit for money was filed in the year 2006 and there was an ex parte decree on 17.07.2007. On 28.04.2009 appellate court allowed the C.M. Appeal and the application to condone the delay on condition of petitioner depositing Rs.10,000/- in the court below on or before 01.06.2009. It is not as if petitioner was not given sufficient time to deposit the amount. He had more than a month’s time to deposit the amount. Assuming that he could not deposit the amount within the time granted, he could have requested the appellate court for extension of time if valid reasons existed. That also was not done. The C.M. Appeal was dismissed for non- compliance of the condition imposed. This petition is filed on 06.12.2010 seeking to set aside the condition imposed in the judgment in C.M.A. No.32 of 2008. A party cannot afford to be so lethargic in his conduct and be under the impression that any laches on his part will be condoned by the superior courts at some stage. I am also to bear in mind the claim of respondent who filed the suit in the year 2006 for recovery of money and the ex parte decree was passed on 17.07.007 for no fault of his. I do O.P(C) No.1098 of 2010 -: 3 :- not find reason to interfere. Original Petition fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv