IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 FAO.No. 122 of 2009() --------------------- AGAINST THE ORDER IN IA.5015/07,5016/07,5017/07 IN OS.383/1988 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/PETITIONERS/1ST &2ND DEFENDANTS ------------------------------------------------------------------------ 1. M.V.CHERIYAN, MADASSERY TRADES, BROADWAY P.O., LINK ROAD, ERNAKULAM, COCHIN-31. 2. LEELA CHERIAN, W/O.M.V.CHERIYAN, MADASSERY TRADES, BROADWAY P.O., LINK ROAD, ERNAKULAM, COCHIN 31. BY ADV. SRI.S.SHARAN RESPONDENT(S): RESPONDENT/PLAINTIFF ------------------------------------------------------------ UNION BANK OF INDIA, KOTHAMANGALAM BRANCH P.O., ERNAKULAM. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 122 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of July, 2009. JUDGMENT Bhavadasan, J, The petitioners in I.A.5015 of 2007 and I.A. 5016 of 2007 in O.S. 387 of before the Sub Court, North Parur are the appellants. Their petitions for setting aside the ex-parte decree and also the petition to condone the delay of 5439 days in filing the application for setting aside the ex-parte decree were dismissed by the court below. 2. The respondent Bank had instituted a suit against the petitioners for recovery of money. The petitioners do not appear to have contested the suit and the suit was decreed ex-parte. 3. According to the petitioners, a loan was availed of by the first petitioner and the second petitioner was only a surety. The main grievance seems to be that even though the first petitioner had assets and the Bank could proceed against him, instead of doing so, the Bank has proceeded against the assets owned by the second petitioner. Petitioners would say that they FAO.122/2009. 2 came to know about the decree only when they received notice in the execution petition. 4. Petitioners therefore filed I.A. 5015 of 2007 for setting aside the ex-parte decree and I.A. 5016 of 2007 for condonation of delay of 5439 days in filing the petition to set aside the ex-parte decree. The main grievance voiced was that the defendants were unaware of the pendency of the suit and no summons had been served on them. It was pointed out that it is true that they had availed of the loan and there was default in repayment of the same. They would also point out that the suit is barred by limitation and the court below ought to have taken note of that fact. Pointing out that unless the decree is set aside and they being allowed to contest the suit on merits, they will be put to irreparable loss and injury. 5. Petitions were resisted by the respondent Bank. They pointed out that summons was served on the first defendant and the summons was served on the second defendant by paper publication. The petitioners had knowledge about the suit and they chose to remain away from court. No written statement has been filed by them, nor did FAO.122/2009. 3 they enter appearance. The respondent had produced all the necessary documents and it was in the absence of any contest on behalf of the petitioners before the court below that the suit was decreed. It was pointed out that no grounds are made out to set aside the ex-parte decree. 6. On a consideration of the materials before it that the court below found that there was no justification for the absence of the defendants in the suit and accordingly dismissed the petitions. The said order is assailed. 7. On the very face of it, the reason given for passing the ex-parte decree seems to be very unconvincing. The respondent in the petitions would point out that in the petitions before the court below they pointed out that the first defendant was served with summons and the second defendant was served by paper publication. There is no case for the second defendant that there was no due service of notice. Going by Order V Rule 20(2) of Code of Civil Procedure, service by publication is as good as personal service. The petitioners before the court below had admitted that the loan was availed of from the Bank, FAO.122/2009. 4 second petitioner was the surety, who had mortgaged the property to the Bank. One cannot simply accept the plea of the petitioners that they were unaware of the suit. Their only claim seems to be that the suit is barred by limitation. If they had such a case, they would have entered appearance and pointed out the same. 8. It is also to be noticed that the petitioners have expressed their willingness to pay the decree amount. There is nothing to indicate that the failure on the part of the defendants to contest the suit was due to reasons beyond their control. The default seems to be wilful and deliberate. Under such circumstances, the court below was fully justified in dismissing the petitions. No grounds are made out to interfere with the order of the court below and the appeal stands dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.