IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 FAO.No. 59 of 2008() AGAINST THE ORDER DATED 06/11/2007 IN IA.1079 & 1080/2007 IN OS.162/2005 of II ADDL.SUB COURT,KOZHIKODE APPELLANTS/PETITIONERS/DEFENDANTS 1. M/S.STATUS, SAVITHRI BUILDINGS, WAYANAD ROAD, KOZHIKODE. 2. P.A.PRAMODKUMAR, S/O.BHASKARAN, AGED 45 YEARS, PROPRIETOR, "STATUS", SAVITHRI BUILDINGS, WAYANAD ROAD, KOZHIKODE. 3. P.BHASKARAN, S/O.CHEROOTY, AGED 82 YEARS, 4/436, DEVI NIVAS, KACHERI AMSOM, KURUMBRAKKAT DESOM, KOZHIKODE TALUK. 4. MRS.MAHIJA PRAMOD, D/O.BHARATHAN, AGED 40 YEARS, "PLEASANT", AG ROAD, KOZHIKODE-32, KACHERI AMSOM, KURUMBRAKKATSSERI AMSOM, KOZHIKODE TALUK. (APPELLANTS 1 & 2 REP.BY POWER OF ATTORNEY P.A.PREMKUMAR, S/O.BHASKARAN, AGED 47 YEARS,4/343A,"AUM",GANDHI ROAD,KOZHIKODE). BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: PLAINTIFF SREE GANESH CHITS & BANKERS, EDAKKAD, KOZHIKODE. BY ADV. SRI.V.K.BALACHANDRAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. NO. 59 OF 2008 = = = = = = = = = = = = DATED THIS, THE 4TH DAY OF MARCH, 2008. J U D G M E N T Raman, J. Appellants are defendants in the suit. The suit is for realisation of money. On the date on which the matter stood for trial, the defendants or their power of attorney holder did not appear and consequently, an ex parte decree was passed against them. Subsequently, they filed an application to set aside the ex parte decree. As the said petition was belated, a separate petition for condoning the delay was also filed. Both these petitions were heard together and disposed of by a common order. The court below condoned the delay and also set aside the decree; however, imposed a condition that the appellants shall deposit an amount equivalent to 10% of the suit claim. 2. When the appeal was filed before this Court, an objection was raised regarding the maintainability of the appeal since it is filed against an order allowing the petition filed by the defendants under Order 9 Rule 13 of the Code of Civil Procedure. However, since a condition was imposed, this court directed to number the appeal provisionally. The respondents have FAO 59/2008 :2: already entered appearance through counsel and we have heard both sides. 3. The only point that arises for consideration is whether the condition imposed by the court below for setting aside the decree is liable to be interfered with and is it cast any onus or burden on the appellants and whether it is justified. 4. This is a kuri transaction. Admittedly, an amount of Rs. 1,40,000/- was the bid amount received by the defendants. Only part of the amount was repaid by way of instalments. Nearly a lakh of rupees is outstanding to be paid. True, the appellant has got other contentions including question of limitation. The suit claim is for an amount of Rs.5,03,611/- with future interest. Earlier, the suit was decreed ex parte allowing the plaint claim. 5. Having heard both sides and after considering the suit claim and the contentions raised between the parties, it cannot be said that the direction to deposit 10% of the suit claim as a condition for setting aside the ex parte decree will cause in any way undue hardship or is unjust. The court below has exercised its discretion properly in the matter. However, what exactly is the amount need not be still be a dispute between the parties. FAO 59/2008 :3: 6. In the circumstances, we clarify that if an amount of Rs. 53,000/- (fifty three thousand) is deposited by the appellants before the court below within three weeks, the decree will stand set aside as ordered by the court below. Subject to the above clarification, the appeal is dismissed. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/-