IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 FAO.No. 250 of 2009() --------------------- AGAINST THE ORDER DATED 28/07/2009 IN IA 259 /2009 IN OS.41/2008 of SUB COURT, CHENGANNUR .................... APPELLANT/PETITIONER/IST DEFENDANT ------------------------------------------------------ T.M.G.FINANCE & LEASING PVT.LTD. REPRESENTED BY THE MANAGING DIRECTOR,M.GOPINATH, KAMALA NIVASIL,THITTAMEL MURI,CHENGANNUR VILLAGE. BY ADV. SRI.M.JACOB MURICKAN SRI.DINESH MATHEW J.MURIKAN SRI.P.V.BALAKRISHNAN RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- CHANDRAMATHIAMMA,AMBIKA SADANATHIL, LAHASSERI MURI,KIZHAKKENADA,CHANGANNUR. BY ADV. SRI.R.RAMADAS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO: 3576/ 2009 ON FAO. 250 OF 2009 DISMISSED. SD/-(K.M.JOSEPH) SD/-(M.L.JOSEPH FRANCIS) JUDGE JUDGE 13.11.2009 // TRUE COPY // PA TO JUDGE dl/ K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No. 250 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2009 JUDGMENT Joseph, J. The appellant challenges the order passed in I.A.No. 259 of 2009 in O.S.No. 41 of 2008. That application was filed to set aside the ex parte decree. The appellant has also filed an application for condonation of the delay, which was allowed, on condition of the appellant depositing 10% of the plaint amount, which comes to Rs.74,000/- It is the common case that the said amount has already been deposited and the delay was condoned. Thereafter, the court below proceeded to take up the present application, which was dismissed. 2. We heard the learned counsel for the appellant, Shri.Jacob Murikan and the learned counsel for the respondent/plaintiff, Shri. R. Ramdas. F.A.O.No. 250 of 200 2 3. The learned counsel for the appellant would submit that the order is not sustainable. The learned counsel for the respondent submits that the suit is of the year 2004 and renumbered as of the year 2008. He would further submit that the respondent has deposited Rs.5,50,000/- with the defendant company and the agreed rate of interest was 20%. He would submit that in case the court is inclined to set aside the impugned order, atleast the admitted amount may be directed to be deposited as a condition. 4. The learned counsel for the appellant would contend that the property belonging to the appellant has been attached and he has filed an application to set aside the attachment, which is pending. He has deposited fixed deposit receipt for Rs.7,50,000/-, which earns interest at the rate of 9.5%. 5. In the circumstances of this case, we feel that it is only fair that there is a decision on the merits of the matter with opportunity to the parties. F.A.O.No. 250 of 200 3 6. Accordingly we allow this appeal. The impugned order is set aside, on condition that the appellant will deposit Rs.1,51,000/- before the court below within a period of one month. Upon such deposit being made as aforesaid, the impugned order shall stand set aside and the application filed by the appellant shall stand allowed. If the suit is restored as above, the court below will take up the suit and dispose of the same on or before 28.2.2010. If the amount is not deposited, the impugned order will stand. We also make it clear that if the appellant has already made an application to lift the attachment, the trial court will take up the same and a decision will be taken before final decision is taken in the matter on merits. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) tm Judge