IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1019 of 2004()
1. SEENATH, SEENATH MANZIL,
... Petitioner
Vs
1. SUSEELA, ODAYILPURAYIDOM,
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.P.SREEKUMAR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :26/11/2007
O R D E R
K.T.SANKARAN, J.
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C.R.P. NO. 1019 OF 2004 G
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Dated this the 26th day of November, 2007
O R D E R
The defendant in O.S.No.744 of 2001, on the file of the Court of the
Additional Munsiff of Kollam, is the revision petitioner. The suit was filed
by the respondent against the revision petitioner for realisation of
Rs.60,000/- with interest. The case of the respondent/plaintiff is that the
revision petitioner executed a promissory note for Rs.60,000/- and she
failed to pay the amount in spite of demand. The revision petitioner was
set exparte. She did not file the written statement within time. On
26.3.2002, an exparte decree was passed against her. I.A.No.3470 of
2002 was filed to set aside the exparte decree. There was a delay of 189
days in filing the application. The trial court dismissed the application for
condonation of delay and consequently dismissed the application for
setting aside the exparte decree.
2. Challenging the order passed by the trial court, the petitioner
filed F.A.O.No.119 of 2003, before the District Court, Kollam. There was
a delay of 231 days in filing the appeal. I.A.No.1516 of 2003 was filed to
condone the delay. The court below by the order dated 26.7.2004,
dismissed the application for condonation of delay. The Civil Revision
Petition is filed challenging that order.
C.R.P. NO.1019 OF 2004
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3. It is submitted that written statement was filed by the revision
petitioner along with the application for setting aside the exparte decree.
The trial court was not satisfied with the explanation offered by the
revision petitioner for occasioning the delay in filing the application. So
also, the Appellate Court held that the petitioner did not satisfy the Court
that she was prevented from filing appeal within time. The court below
held that it is not proved that the petitioner/defendant was prevented by
sufficient cause from appearing before the trial court when the suit was
posted for trial.
4. After having heard the learned counsel for the petitioner and the
respondent, I am of the view that the delay in filing F.A.O.No.119 of 2003
can be condoned on the petitioner furnishing sufficient security for the
decree amount in the trial court and also paying a sum of Rs.3,000/- as
costs to the respondent. The delay in filing the appeal was sought to be
explained by saying that though the certified copy of the order of the trial
court was ready, the Advocate’s Clerk failed to receive the copy from
Court. It is also stated that whenever the revision petitioner approached
the Advocate’s Clerk, she was told always that certified copy was not
received. In the facts and circumstances of the case, dismissal of
F.A.O.No.119 of 2003 only on the ground of delay may not be proper. At
the same time, an unconditional order is also not called for in view of the
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fact that not only the appeal was filed belatedly, but also the application
for setting aside the exparte decree was filed with a delay of 189 days. It
is also relevant to note that the revision petitioner failed to file the written
statement in time and she filed it only along with the application to set
aside the exparte decree.
5. Taking into account the facts and circumstances of the case,
the Civil Revision Petition is allowed and the order dated 26.7.2004, in
I.A.No.1516 of 2003 in F.A.O.No.119 of 2003, passed by the District
Court, Kollam, is set aside on the following conditions:
i) The revision petitioner/defendant shall furnish sufficient
security before the trial court, in the form of immovable
property, for the decree amount, within a period of one
month from today. It is submitted that the property
belonging to the petitioner was attached in execution by the
executing court. It is made clear that the property under
attachment can be offered by the revision petitioner as
security, provided, it is sufficient security for the decree
amount. After furnishing security before the trial court, the
revision petitioner shall file an affidavit before the District
Court stating that the security has been furnished. Such
affidavit shall be filed within six weeks from today.
C.R.P. NO.1019 OF 2004
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ii) The revision petitioner/defendant shall pay a sum of
Rs.3,000/- to the respondent as costs and shall produce a
memo evidencing payment before the District Court, Kollam
in F.A.O.No.119 of 2003, within a period of three weeks
from today.
If the revision petitioner fails to comply with any of these conditions, the
Civil Revision Petition shall be treated as dismissed. The District Court
shall dispose of F.A.O.No.119 of 2003 within a period of four months from
today.
(K.T.SANKARAN)
Judge
ahz/