IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WP(C).No. 5277 of 2008(C) ------------------------- AGAINST THE ORDER DATED 16/06/2007 IN IA. 937 /2007 IN OS.37/2006 of PRINCIPAL SUB COURT, ALAPPUZHA .................... PETITIONER(S): --------------- N. KOMALADAS, S/O.NARAYANAN MADHAVI MANDIRAM, NORTH ARYAD P.O., ALAPPUZHA. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S): --------------- S.AMBI, S/O.LATE SUKUMARAN ROHINI, NORTH ARYAD P.O., ALAPPUZHA. ADV. SRI.B.PRAMOD SRI.GEORGE MATHEWS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- W.P.(C) 5277 OF 2008 -------------------------------------- Dated: SEPTEMBER 15, 2009 JUDGMENT This is a writ petition filed by the defendant in O.S.37/2006 on the file of the Sub Court, Alappuzha, to issue a writ of certiorari to quash Ext.P3 order of the learned Sub Judge refusing to grant extension of time for payment of cost ordered to be paid under Ext.P2 order. 2. The respondent/plaintiff filed O.S.37/2006 before the lower court for realisation of Rs.4 lakhs from the revision petitioner which is allegedly borrowed by the revision petitioner from the respondent. According to the respondent, the cheque issued by the revision petitioner was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank. As the revision petitioner remained absent on 7.2.2007, the lower court passed an ex parte decree on 8.2.2007. The revision petitioner filed I.A.497/2007 before the lower court to set aside the ex parte decree. On 6.6.2007 by Ext.P2 order the Sub Judge allowed the petition on condition of payment of Rs.3000/- as cost to the plaintiff within five days. W.P.(C) 5277 OF 2008 2 I.A.937/2007 was filed by the writ petitioner on 14.6.2007 for extension of time to pay the cost ordered. The learned Sub Judge dismissed the said petition on 16.6.2007 by Ext.P3 order. The petitioner challenges the said order in this writ petition. 3. Learned counsel for the writ petitioner argued that as the petitioner was laid up with back pain, he was not able to pay the cost within time. He has also produced the medical certificate before the trial court. The learned counsel for the respondent/plaintiff resisted the contention of the petitioner stating that the execution petition is now at the last stage of execution and that the intention of the petitioner is to protract the proceedings further. 4. Heard both counsel in this matter. As the ex parte decree has already been ordered to be set aside by the trial court on payment of cost in the interest of justice, I feel that time can be granted to the petitioner for payment of cost and he may be permitted to contest the suit on all grounds. In the result, the writ petition is allowed. Ext.P3 order is set aside. I.A.937/2007 before the lower court is allowed. The W.P.(C) 5277 OF 2008 3 writ petitioner is permitted to pay cost as ordered in Ext.P2 order within two weeks before the lower court. On payment of such cost, I.A.497/2007 before the trial court shall be allowed and the ex parte decree passed in the suit will be set aside. As the suit is of the year 2006 and the execution petition is pending, the trial court shall dispose of the suit as early as possible, but not later than six months from the date of receipt of the copy of this judgment. P.Q. BARKATH ALI, JUDGE mt/- W.P.(C) 5277 OF 2008 4