IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No.3256 of 2009 (K) -------------------------------- AGAINST THE ORDER IN IA.1800/2008 IN OS.101/2007 of SUB COURT, PALA .................... PETITIONER: --------------- ABY JOSEPH, AGED 47 YEARS, S/O. JOSEPH, KARAMAYIL HOUSE, KIZHATHADIYOOR KARA, LALAM VILLAGE, PALA.P.O, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.JOSE THOMAS (PALA) RESPONDENTS: ------------------ 1. THE SOUTH INDIAN BANK LTD., PALA BRANCH, REPRESENTED BY ITS MANAGER. 2. ELIZABETH, AGED 38 YEARS, W/O. ABY JOSEPH, KARAMAYIL HOUSE, LALAM VILLAGE, MEENACHIL TALUK, PALA.P.O, KOTTAYAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.3256 of 2009 ------------------------------------------------ Dated this the 30th day of January, 2009 JUDGMENT Heard the counsel for the petitioner. 2. The petitioner is the defendant in O.S.101/07 on the file of the Sub Court, Pala instituted by the first respondent/bank for recovery of money. The suit was decreed ex parte as the petitioner as also the other defendants in the suit did not appear when the suit stood posted for trial in the special list. Thereafter, the petitioner filed an application to set aside the ex parte decree and the court below vide Ext.P6 order impugned in this Writ Petition, allowed the said application on payment of cost of Rs.10,000/- to the first respondent and producing receipt within ten days. 3. To order the defendant who seeks to get the ex parte decree set aside, to pay an W. P. C. No.3256 of 2009 -2- amount of Rs.10,000/- within a period of ten days tantamounts to disallowing the petition filed under Order IX Rule 13 as a person who is a debtor in the normal course will not be able to raise such a huge amount of Rs.10,000/- within ten days and to pay by way of cost to the first respondent/plaintiff. The cost so ordered is highly disproportionate and unconscionable and Ext.P6 order to that extent cannot be sustained. 4. In the result, even without notice to the respondent/decree holder/bank, cost being in the discretion of the court and the court below having exercised the discretion illegally and without any propriety, I reduce the cost imposed vide Ext.P6 order to Rs.2,000/-. The said Rs.2,000/- shall be paid to the first respondent/Bank positively in ten days from today. In case cost is not so paid within ten days, the petitioner shall forfeit W. P. C. No.3256 of 2009 -3- the benefit of cost having been reduced and the petition filed under Order IX Rule 13 shall stand dismissed. 5. With the above directions this Writ Petition is disposed of. The petitioner is directed to produce a copy of this judgment in the court below forthwith with notice to counsel for the plaintiff/Bank as this Writ Petition is being disposed of without notice to the respondent/plaintiff. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN, JUDGE kns/-