IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 OP(C).No. 14 of 2011(O) CMA.75/2010 OF DISTRICT COURT, KOLLAM OS.153/2007 OF PRINCIPAL SUB COURT,KOLLAM PETITIONER: -------------------- S.AJAYAKUMAR, THAZHANJIYEL VEEDU VELIYAM, KOTTARAKARA, KOLLAM. BY ADV. SRI.P.RAVEENDRAN RESPONDENT: --------------- T.ANIRAJ, ALAYATHU PADINJATTATHIL, KOTTAKAGOM,KOLLAM 695 560. ADV. SRI.SURESH KUMAR KODOTH SMT.HEMALATHA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE O.S.NO.153 OF 2007 EXT.P2 TRUE COPY OF THE JUDGMENT DATED 31.3.2008 IN O.S.NO.153 OF 2007. EXT.P3 TRUE COPY OF EXECUTION PETITION EP.152/09 FILED BEFORE SUB COURT, KOTTARAKKARA. EXT.P4 TRUE COPY OF THE I.A.NO.1101/2010 FOR SETTING ASIDE THE EXPARTE DECREE. EXT.P5 TRUE COPY OF THE I.A.NO.1102/2010 FOR CONDONING THE DELAY IN FILING I.A.FOR SETTING ASIDE THE EXPARTE DECREE. EXT.P6 TRUE COPY OF THE ORDER IN I.A.NO.1101/2010 DATED 31.3.2010 BY THE SUB COURT, KOLLAM. EXT.P7 TRUE COPY OF THE ORDER IN I.A.NO.1102/2010 DATED 31.3.2010 BY THE SUB COURT, KOLLAM. EXT.P8 TRUE COPY OF W.P.(C) NO.22325/2010 FILED ON 13.7.2010. EXT.P9 TRUE COPY OF ORDER IN W.P.(C)NO.22325/2010 DATED 15.7.2010. EXT.P10 TRUE COPY OF CMA.75/10 FILED ON 4.8.2010 BEFORE DISTRICT COURT, KOLLAM. EXT.P11 TRUE COPY OF I.A.NO.1712/2010 DATED 4.8.2010 FILED BEFORE DISTRICT COURT, KOLLAM. EXT.P12 TRUE COPY OF I.A.NO.1713/2010 DATED 4.8.2010 FILED BEFORE DISTRICT COURT, KOLLAM. EXT.P13 TRUE COPY OF THE ORDER IN I.A.NO.1712/2010 ;DATED 16.11.2010 FILED BEFORE DISTRICT COURT, KOLLAM. EXT.P14 TRUE COPY OF THE ORDER IN CMP.NO.75/2010 DATED 16.11.2010 FILED BEFORE DISTRICT COURT, KOLLAM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 14 OF 2011 O ------------------------------------------------------ Dated this the 23rd day of February, 2011 JUDGMENT On 31.3.2008, an exparte decree was passed in O.S.No.153 of 2007 against the petitioner. The petitioner filed I.A.No.1101 of 2010 under Order IX Rule 13 of the Code of Civil Procedure to set aside the exparte decree. There was a delay of 666 days in filing the application. To condone the delay, the petitioner filed I.A.No.1102 of 2010. The trial court dismissed I.A.No.1102 of 2010 and consequently, dismissed I.A.No.1101 of 2010. 2. The petitioner challenged the order dismissing the application for condonation of delay in W.P.(C) No.22325 of 2010, which was disposed of by this Court as per Ext.P9 judgment dated 15.7.2010. This Court held that since the application to set aside the exparte decree was also dismissed, the remedy of the petitioner is to file appeal. 3. Accordingly, the petitioner filed C.M.A.No.75 of 2010 before O.P.(C) NO.14 OF 2011 :: 2 :: the District Court, Kollam. To condone the delay of 95 days in filing the appeal, the petitioner filed I.A.No.1712 of 2010. The court below dismissed I.A.No.1712 of 2010 as per Ext.P13 order dated 16.11.2010 and consequently, dismissed C.M.A.No.75 of 2010 as per Ext.P14 judgment dated 16.11.2010. Exts.P13 order and P14 judgment are under challenge in this Original Petition. 4. Learned counsel for the petitioner submitted that W.P.(C) No.22325 of 2010 was filed by the petitioner before the expiry of two months and without much delay after the disposal of the Writ Petition, he filed C.M.A.No.75 of 2010 before the District Court, Kollam. If the time spent in prosecuting the Writ Petition is excluded, it is submitted that the delay will be less. 5. Taking into account the peculiar facts and circumstances of the case, I am of the view that the delay in filing the C.M.Appeal is liable to be condoned on terms. Accordingly, the order dated 16.11.2010 in I.A.No.1712 of 2010 in C.M.A.No.75 of 2010 is set aside on condition that the petitioner shall pay a sum of Rupees Five hundred as costs to the respondent within a period of one month. If O.P.(C) NO.14 OF 2011 :: 3 :: the petitioner complies with the direction to pay costs, the judgment in C.M.A.No.75 of 2010 also will stand set aside. If the petitioner fails to pay costs, the Original Petition shall be treated as dismissed. The Original Petition is allowed as indicated above. (K.T.SANKARAN) Judge ahz/