IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 FAO.No. 179 of 2009() --------------------- AGAINST ORDER DT.1.7.2009 IN EA 32/09 & EA 33/09 IN EP 30/08 IN OS.152/2001 of SUB COURT, PATHANAMTHITTA .................... APPELLANT/PETITIONER/JUDGEMENT DEBTOR --------------------------------------------------------- K.V.RAJAN,51 YEARS,S/O.LATE P.C.VARGHESE SNEHA BHAVAN,ULLANNUR MURI,KULANADA VILLAGE, KOZHENCHERY TALUK,PATHANAMTHITTA DIST.,FORMERLY M.D. OF BEST HOME CONTRACTING LLC,P.B.NO.25668,UAE REP.BY HIS P/A.HOLDER SIJO K.R.,34 YRS,S/O.RAPHEL KADAVIL(H),CHEERACHI DESOM,CHIYYARAM VILLAGE,TSR. BY ADV. SRI.P.HARIDAS RESPONDENT(S): DECREE HOLDER ---------------------------- SABAH ENGINEERING AND MARINE SERVICES, UAE BASED SOLE PROPRIETORSHIP, CONCERN, OWNED BY MOHAMMED RAMDAN MOUSA AL SAWJAI, UAE, REP. BY KOOTTUMMEL JOB JOSEPH, KALARICKAL HOUSE, INDUSTRIAL NAGAR P.O., VEROOR, CHENGANACHERRY. ADV. SRI.K.SHIJU FOR R1 SRI.L.RAJMOHAN FOR R1 SRI.SAJJU.S FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 179 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2009. JUDGMENT Raman, J, Judgment debtor in E.P. No.30 of 2008 is the appellant. He is aggrieved by the order refusing to condone the delay and consequent dismissal of the application to set aside the ex-parte order passed against him in the execution proceedings. Notice was ordered in the execution petition to the appellant to appear on 8.8.2008, on which day he appeared and sought for time to file vakalath and the case was posted to 12.8.2008. On that day he did not appear and he was set ex- parte as contemplated under Order XXI Rule 106(3) of the Code of Civil Procedure. Subsequently he filed an application to set aside the ex-parte order with a petition to condone delay of 120 days. The court below dismissed the same on the ground that even on the day on which that application for setting aside the ex-parte order was posted, he was absent. FAO. 179/2009. 2 Hence this appeal. 2. Heard both sides. 3. According to the parties, on the day on which the petition was posted, appellant was present. Therefore, the observation that when the case was called petitioner and his counsel were absent is factually not correct. There is only an one line order stating that the delay is not satisfactorily explained. In such circumstances, we would have normally set aside the order impugned for fresh consideration in accordance with law. But, we find that even the application he has filed is unnecessary since on the day on which he was absent and in the E.P the court did not pass an order, but only declared him absent. According to him, that being the position, in the subsequent proceedings he is entitled to participate and continue the proceedings. He placed reliance on the decision of this court reported in Cleetus v. South Indian Bank(2007 (3) KLT 868). There is force in this contention. FAO. 179/2009. 3 In the circumstances, the appellant is permitted to participate in the further execution proceedings and the order impugned in this appeal will not stand in the way of exercising his right as such. SD/-P.R. Raman, Judge SD/-P. Bhavadasan, Judge TRUE COPY PS TO JUDGE sb.