M/S.Bridge And Building … vs M/S. Kairali Granites on 23 September, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 272 of 2007()


1. M/S.BRIDGE AND BUILDING CONSTRUCTION
                      ...  Petitioner

                        Vs



1. M/S. KAIRALI GRANITES, N.H.BYEPASS ROAD,
                       ...       Respondent

                For Petitioner  :SRI.M.RAJASEKHARAN NAYAR

                For Respondent  :SRI.V.SANTHARAM

The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice K.T.SANKARAN

 Dated :23/09/2008

 O R D E R
                     KURIAN JOSEPH & K.T. SANKARAN, JJ.
                 ........................................................................
                                 F.A.O. No. 272 OF 2007 &
                              C.R.P.No. 487 OF 2007 AND
              C.M. APPLICATION NO. 545 OF 2007 IN C.R.P. 487 OF 2007
                    .........................................................................
                          Dated this the 23rd September, 2008

                                          J U D G M E N T

K.T. Sankaran, J:

C.M. APPLICATION NO. 545 OF 2007 IN C.R.P.No. 487 OF 2007:

Delay in filing the Civil Revision Petition is condoned.

F.A.O. No. 272 OF 2007 & C.R.P.No. 487 OF 2007:

The appellant who was the defendant in O.S.No. 688 of 1999 on the file

of the Court of the Subordinate Judge, Ernakulam, was set ex parte and an ex

parte decree was passed on 03.07.2001, The appellant filed I.A.No. 6312 of

2005 under Order IX Rule 13 of the Code of Civil Procedure to set aside the

ex parte decree. I.A.No. 6313 of 2005 was filed to condone the delay in filing

the application to set aside the ex parte decree. The court below dismissed the

applications. The application for condonation of delay was apparently dismissed

on the ground that there was no representation on behalf of the appellant. The

application filed under Order IX Rule 13 was dismissed on the ground that

inspite of the fact that an ex parte decree was passed the appellant had applied

for setting aside the ex parte order and not the decree. .

2. The application filed under Order IX Rule 13 of the Code of Civil

Procedure, which was made available along with the appeal would clearly

indicate that the prayer was to set aside the ex parte decree passed against the

appellant on 03.07.2001 and not to set aside the ex parte order. Learned

F.A.O. No. 272 OF 2007 &
C.R.P.No. 487 OF 2007

2

counsel appearing for the respondent would not dispute the contention raised by

the appellant in this regard. Thus it is clear that the court below has not properly

exercised the jurisdiction vested in it by law. The court below has not considered

the application on the merits. Only on the technical ground that the appellant

could not maintain an application to set aside an ex parte order after an ex parte

decree was passed, the application was dismissed. This ground stated by the

court below is apparently wrong on facts. The orders passed by the court below

are therefore set aside. The court below shall consider and dispose of I.A.Nos.

6312 and 6313 of 2005 afresh, after affording an opportunity of being heard to

both the parties. The court below shall also afford an opportunity to the

respondent to file objections, if any. The parties shall appear before the court

below on 03.11.2008.

The Appeal and Civil Revision Petition are allowed as above.

I.A.No. 3432 of 2007 in F.A,O.No. 272 of 2007 and I.A.No. 1273 of 2007 in

C.R.P.No. 487 of 2007:

Dismissed.

KURIAN JOSEPH,
JUDGE.

K.T. SANKARAN,
JUDGE.

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