IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 FAO.No. 68 of 2006(C) -------------------- APPELLANT/PETITIONER/DEFENDANT NO.1: -------------------------------------------------------- DR. VARGHESE MUNDACKAL, AGED 67 YEARS, S/O. JOSEPH, MUNDACKAL HOUSE, KARINGAZHA KARA, KOTHAMANGALAM. BY ADV. DR.VARGHESE MUNDAKAL (PARTY-IN-PERSON) RESPONDENTS: DEFENDANTS NO.2: ------------------------------- 1. THE SOUTH INDIAN BANK LTD., KOTHAMANGALAM BRANCH REP. BY ITS BRANCH MANAGER, KOTHAMANGALAM BRANCH. 2. JERARD M.S., S/O. XAVIER, MUNDACKAL HOUSE, KANNGAZHA KARA, KOTHAMANGALAM. ADV. SRI.K.K.JOHN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO: 980 / 2006 ON FAO. NO: 68 / 2006 DISMISSED. SD/- A.K.BASHEER (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 19.1.2010 A. K. BASHEER & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No: 68 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of January, 2010. JUDGMENT Basheer J., Appellant is defendant No.1 in a suit for recovery of money instituted by respondent No.1 Bank. Since appellant and co - defendants remained absent before the court below when the suit was taken for trial, they were set exparte. The court below passed an exparte decree against them on June 6, 2005. 2. Appellant filed a petition to set aside the exparte decree under Order 9 Rule 13 of the Code of Civil Procedure, with a delay of 23 days. The court below after considering the averments made in the affidavit filed in support of the two applications, took a view that the appellant had failed to give sufficient reason to condone the F.A.O. No: 68 of 2006 :2: delay of 23 days. Accordingly the application for condonation was dismissed. Consequently the other application was also dismissed. The above two orders are under challenge in this appeal. 3. We heard the appellant who appears in person. We have also heard Sri. K. K. John, learned counsel who appears for Respondent No.1 Bank. 4. Having heard learned counsel for the parties and having perused the materials available on record, we are satisfied that the appellant has to be given an opportunity to defend the suit; however, only on appropriate terms. In our view, the court below was not justified in rejecting the prayer made by the appellant to condone the delay of 23 days and to set aside the exparte decree. Therefore, the impugned orders shall stand set aside on condition that the appellant pays a sum of Rs.5,000/- (Rupees five thousand only) as costs to the plaintiff Bank, within two weeks from today. On such deposit being made, the court below shall proceed with the suit afresh and dispose of the same on its merit, F.A.O. No: 68 of 2006 :3: after affording sufficient opportunity to the parties to adduce evidence. If the appellant fails to deposit the cost before the court below as directed above, the appeal will stand dismissed. The appeal is disposed of in the above terms. A. K. BASHEER, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/