IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 FAO.No. 348 of 2010 ----------------------------- AGAINST THE ORDER DATED 07/02/2009 IN IA.11/2001 IN OS.59/1992 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT (S):PETITIONER: -------------------------------------------- B.RAMACHANDRAN UNNITHAN, PARAPPURAMMACHI VEEDU, KAIKULANGARA, KOLLAM. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENT(S): RESPONDENT: ---------------------------------------------- G. CHANDRAMOHAN UNNITHAN, AMMACHI VEEDU, KAIKULANGARA, KOLLAM-691001. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE SMT.BABITHA THAMBI SRI.K.N.SASIDHARAN NAIR. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 03/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & C.T.RAVIKUMAR, JJ. ----------------------------------------- F.A.O.No.348 of 2010 ----------------------------------------- Dated, this the 3rd day of October, 2011 J U D G M E N T K.M.Joseph, J. Sri.P.B.Sureshkumar takes notice for the respondent. 2. Appellant is the petitioner in IA No.11/2011 in OS No.59/1992 on the file of the Principal Sub Court, Kollam. Appellant filed an application under Order 9 Rule 13 of Code of Civil Procedure. The same has been rejected by the court below for the reason that the appellant has not made out any ground for setting aside the exparte decree. The court below noted inter alia that the appellant has been set exparte earlier in the year 1998. The suit is admittedly of the year 1992. The case was listed after earlier exparte decree was set aside for trial on 8.11.2000. The suit was decreed exparte on 24.11.2000. 3. According to the appellant, appellant was not keeping well. He has also examined the Doctor as Pw2. Ext.A1 is the medical certificate. 4. Learned counsel for the appellant would point out that the appellant has deposited Rs.2 lakhs in all. Learned FAO 348/2010 -2- counsel for the respondent would on the other hand point out that the amount due under the decree as it stands is in the region of Rs.6 lakhs. He also points out the conduct of the appellant as a result of which the suit is pending nearly for 19 years. 5. After hearing the learned counsel we are of the view that there is need for an adjudicated decision. However, it cannot be passed as an unconditional order and the appellant must be put to terms. Accordingly, the appeal stands allowed and the impugned order stands set aside and the application filed by the appellant stands allowed on the appellant satisfying the following conditions: i) The appellant must pay a sum of Rs.7,500/- (Rupees seven thousand five hundred only) as cost to the learned counsel for the respondent in this Court and produce memo to that effect within ten days from today. ii) The appellant must make a further deposit of Rs.1 lakh (Rupees one lakh) before the court below within a period of one month from today. iii) The appellant must also furnish security to the satisfaction of the Court below for the balance decreetal amount FAO 348/2010 -3- within one month from today. If the appellant complies with the aforesaid conditions alone the application filed by the appellant shall stand allowed and the impugned order set aside as aforesaid. If the conditions are fulfilled, the court below will take up the suit and dispose of the same finally on or before 31.3.2012. In case the appellant does not comply with any of the three conditions the appeal will stand dismissed and the impugned order will stand confirmed. (K.M.JOSEPH) JUDGE. (C.T.RAVIKUMAR) JUDGE. MS