IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 CRP.No. 496 of 2011() -------------------------- I.A. NO.3163/2010 IN O.S. NO.38/2008 OF THE SUB COURT, OTTAPALAM ......... REVN. PETITIONER(S): RESPONDENT/PLAINTIFF ---------------------------------------------------------- JAYAPRAKASH, S/O. KANNAMPURATH KRISHNANKUTTI, RESIDING AT PAYYANEDAM DESOM, PAYYANEDAM VILLAGE, MANNARKKAD TALUK. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.RAVI K. PARIYARATH RESPONDENT(S): PETITIONER/DEFENDANT --------------------------------------------------- VALLI, D/O. DECEASED PARIYARATHODI NARAYANAN AND W/O. KUNNATH MANU @ CHAMI, KULUKKILIYAD AMSOM DESOM, OTTAPALAM TALUK - 678 001. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P. JOSEPH, J. ---------------------------------------- C.R.P.No.496 of 2011 --------------------------------------- Dated this 10th day of November, 2011 ORDER The civil revision is in challenge of order dated 13.06.2011 on I.A.No.3163 of 2010 in O.S.No.38 of 2008 of the Court of learned Sub Judge, Ottappalam. There, an ex parte decree for specific performance of an agreement for sale (allegedly) executed by the respondent was passed. Petitioner deposited the balance sale consideration. At that stage, respondent filed I.A.No.3163 of 2010 (admittedly within the time prescribed for filing the application) to set aside the ex parte decree. That application was opposed by the petitioner. Learned Sub Judge by order dated 13.06.2011 observed that reason stated by the petitioner for absence in Court on the day the case was listed for trial is not that much convincing as the medical officer who issued the medical certificate is not examined but thought that having regard to the circumstances respondent must be given an opportunity to contest the case and hence allowed the application on payment of cost of `.2,500/-. 2. Learned counsel contends that in view of the observations learned Sub Judge has made in paragraph 6 of the C.R.P.No.496 of 2011 -: 2 :- impugned order, a dismissal of the application should have followed. 3. I have gone through paragraph 6 of the impugned oder where it is stated that due to non examination of the medical officer who is said to have issued the medical certificate, that certificate cannot be looked into. Hence there is no evidence to show that respondent was laid up as claimed by him. I must bear in mind that it is not as if the claim of respondent has been disbelieved or found to be not true but, it is only that learned Sub Judge did not accept that case for the reason of the medical certificate not being proved by examining the medical officer. I must also bear in mind that though an ex parte decree was passed, application to set aside the same was filed within the time prescribed. Having regard to the circumstances learned Sub Judge thought that respondent must be given an opportunity to contest the suit. I am not inclined to think that this Court must interfere in revision as if the order is perverse, arbitrary or capricious. Any inconvenience that is caused to the petitioner on account of the ex parte decree being set aside is compensated by the learned Sub Judge by directing the respondent to pay cost of `.2,500/-. I do not find reason to interfere. C.R.P.No.496 of 2011 -: 3 :- 4. Learned counsel submitted that petitioner has already deposited a sum of `.1,30,000/- in the court below. If that deposit does not generate interest, it is possible that petitioner might suffer loss by the time the suit is ultimately disposed of. In the circumstances, I make it clear that it is open to the petitioner to request learned Sub Judge to transfer the amount in deposit either to the Treasury or to a nationalised bank as the case may be so that, interest will accrue on the amount thus deposited and thereby petitioner will not be put to loss on that account. With the above direction this civil revision is disposed of. (THOMAS P. JOSEPH, JUDGE) Sbna/-