IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 WP(C).No. 15416 of 2008(I) -------------------------- AGAINST THE ORDER DATED / / IN & 52/2005 IN CMA.41/2005 of D.C. & SESSIONS COURT,KOZHIKODE OS.192/2003 of ADDL.M.C.,KOZHIKODE-II .................... PETITIONER: ------------ KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENTS: ------------- K. NIRMALAN, S/O. GOVINDAN, AGED 56 YEARS, SREE GOVINDAM, PUTHIYARA, KASABHA AMSOM, DESOM, KOZHIKODE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.15416 of 2008 ------------------------------- Dated this the 26th May, 2008. J U D G M E N T Petitioner is the defendant in O.S.No.192/2003, on the file of Munsiff Court, Kozhikode. Respondent instituted the suit claiming damages for the pensionary benefits belatedly granted. Petitioner did not file a written statement. The suit was decreed ex- parte on 23.10.2003. Subsequently, two applications, one to condone the delay and the other to set aside the ex-parte decree, were filed on 21.2.2004. The learned Munsiff under Exts.P3 and P4 orders dismissed the applications. Petitioner challenged that orders before District Court, Kozhikode, in C.M.A.Nos.41 & 42 of 2005. The learned District Judge confirming the order passed by the trial court dismissed the appeals under Ext.P5 common order. The said order is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioner was heard. The argument of the learned counsel is that there was only a delay of 42 days in filing the written statement, and the written W.P.(C) No.15416/2008 2 statement though prepared and sent could not be filed, as the counsel did not receive the same, and thereafter, petitions were filed to condone the delay and to set aside ex-parte decree and courts below should have allowed the petitions, set aside the ex-parte decree, and granted an opportunity to have a decision on merits. The learned counsel also argued that what was granted by the trial court is interest in interest which is impermissible, and therefore, order passed by the learned District Judge and the ex-parte decree are to be set aside. 3. The decree was passed on 23.10.2003. An application under Order IX Rule 13 of Code of Civil Procedure has to be filed within 30 days from that date. Petition was filed only on 21.2.2004. Though petition was filed to condone the delay, the trial court and the first appellate court found that there is no valid explanation of the delay. What is stated in the petition was that the original written statement was sent to the counsel by post, but the counsel did not receive the same, and as it was informed to the petitioner and a fresh statement has to be prepared, and for that purpose, several records are to be perused, and therefore, the delay occurred, and the delay is to be condoned. As rightly found by the courts below, that explanation cannot be accepted. If the written statement was already prepared and sent, which was not received by W.P.(C) No.15416/2008 3 the counsel and another written statement has to be filed, there is absolutely no necessity to peruse the other records for preparing the written statement, as copy of the written statement must be with the counsel. Therefore, it is clear that cause stated in the petition is not correct. 4. When the delay was not properly explained, courts below were justified in refusing to condone the delay. I do not find any illegality or irregularity in that order. The argument of the learned counsel then is that the decree is not sustainable, as interest on interest was granted. That is not a matter to be considered in this petition. If the petitioner is aggrieved by the judgment and decree, remedy is to be file an appeal. Though learned counsel for the petitioner seeks a direction to the Executing Court to consider that aspect, Executing Court cannot go behind the decree. Petitioner is at liberty to challenge the decree by filing an appeal. Writ Petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.