IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 WP(C).No. 31950 of 2008(C) -------------------------- OS.410/2002 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- 1. C.S.UNNI ,PLAVILA VEEDU, T.C 1/127,POONTHI ROAD,KUMARAPURAM, THIRUVANANTHAPURAM. 2. PRABHA OF DO..DO... BY ADV. SRI.V.R.GOPU SRIC.R.SUDHEESH RESPONDENT --------------- KUMARI MINI.S.S, KURISUVILAKATHU VEEDU,BARMA ROAD, KUMARAPURAM, PATTOM VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.V.S.BABU GIREESAN FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXTS: EXT.P1: TRUE COPY OF PLAINT IN O.S.NO:410/2002 DT.29.8.2002 EXT.P2: -DO- OF WRITTEN STATEMENT IN O.S.410/2002 DT.15.1.2003 EXT.P3: -DO- OF JUDGMENT IN O.S.410/92 ON THE FILE OF i ADDL. SUB JDGE'S COURT, THIRUVANANTHAPURAM DT.3.6.2006 EXT.P4: -DO- OF PETITION IN I.A.2746/06 IN O.S.410/2002 DT. NIL EXT.P5: -DO- OF OBJECTION FILED BY RESPONDENT TO I.A. 2746/06 DT. 21.6.2008 EXT.P6: -DO- OF ORDER IN I.A. 2746/06 IN O.S.410/02 ON THE FILE OF I ADDL. SUB COURT, THIRUVANANTHAPURAM DT. 6.10.2008 JJ /TRUE COPY/ P.A. TO JUDGE K.P. BALACHANDRAN, J. ------------------------------- W.P(C) No.31950 OF 2008-C ------------------------------- Dated this the 5th December, 2008. JUDGMENT This writ petition is filed by defendants in O.S.410/2002 who were petitioners in I.A.2746/2006 on the file of the Additional Sub Court, Thiruvananthapuram assailing Ext.P6 order passed by the Sub Judge on I.A.2746/2006. The grievance that is highlighted is that the court below has imposed very severe conditions while allowing the ex parte decree being set aside observing that in the decision of this Court in N. Karuppan v. M. Sankaran Nair (AIR 1973 Kerala 28) such stringent conditions are allowed to be imposed in appropriate cases. In the instant case the court vide Ext.P5 order directed the petitioner/defendant to deposit one half of the decretal amount before court before 31.10.2008 to have the ex parte decree set aside. Counsel for the petitioner submits that decree passed ex parte in the suit is for realisation of an amount of Rs.3 lakhs with interest at the rate of 12% per annum till realisation of decree and thereafter at 6% per annum with costs of the suit and that even half the amount as per the decree will come to about Rs.2 WPC 31950/2008 2 lakhs. 2. The grievance, no doubt is genuine but at the same time the suit is one of 2002. The respondent who has obtained the decree is being rendered unable to recover the fruits of the decree while setting aside the ex parte decree passed in his favour. Counsel for the respondent opposes the prayer in this writ petition on the ground that the property belonging to the petitioner/judgment debtor had been attached but over the said property there are also other encumbrances. 3. Counsel for the petitioner submits that there is no encumbrance as such except a few other attachments. 4. In the result I direct that the ex parte decree shall stand set aside as has been allowed by Ext.P6 order in case the petitioner/defendant furnishes sufficient security to the satisfaction of the court below for the entire debt involved in the suit. According to the counsel for the petitioner the property that is being attached will itself be sufficient security. In that event the petitioner can furnish the property that is attached before judgment in the suit as security. The question as to whether it would be sufficient security is for the court below to consider. This writ WPC 31950/2008 3 petition is disposed of with the above directions. The court below shall dispose of the suit itself within a maximum period of six months after receipt of a copy of this judgment. K.P.BALACHANDRAN JUDGE jj