IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 27241 of 2005(R)
1. A. EZATH, S/O. LATE ALI AKBAR,
... Petitioner
Vs
1. S. ABDUL FATAH, S/O.MOHAMMED KUNJU,
... Respondent
For Petitioner :SRI.VINOY VARGHESE KALLUMOOTTILL
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :07/06/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C)No.27241 OF 2005
...........................................................
DATED THIS THE 7TH JUNE, 2007
J U D G M E N T
In this Writ Petition under Article 227 of the Constitution of India,
the petitioner-defendant challenges Ext.P1 order dismissing an
application filed by him for setting aside the decree which was passed
ex parte against him by the trial court. He also challenges Ext.P3,
another order passed by the court below on an application for
restoration of I.A.No.4174 of 2003 which was dismissed for default
vide Ext.P1.
2. Even though the respondent was served with notice, he has
not chosen to enter appearance before this Court.
3. I do not think that the petitioner can as of right invoke the
visitorial jurisdiction of this Court under Article 227 seeking to set
aside Exts.P1 and P3, especially since it is seen that he has not availed
alternative remedy available to him against Ext.P1. But, at the same
time, it is to be noticed that this Court stayed all proceedings for
execution of the decree as far back as on 26.9.2005. The respondent-
decree-holder has not come forward to resist the prayers in the Writ
Petition. It appears to me that the respondent is not very much
opposed to the suit being adjudicated on its merits. At the same time,
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the fact remains that the petitioner and his counsel were being
continuously absent before the trial court even after having filed the
petition to set aside the ex parte decree. It cannot be said that the
court below was wrong in passing Ext.P1 order.
4. Under the above circumstances, I am inclined to set aside
Exts.P1 and P3 but only on very strict conditions. Exts.P1 and P3 will
stand set aside and the application filed by the petitioner for setting
aside the ex parte decree will stand allowed, provided the petitioner
complies with the following conditions:-
1. The petitioner pays to the respondent either directly or
deposits before the court below for payment to the
respondent a sum of Rs.10,000/- within one month from
today.
2. The petitioner pays a sum of Rs.2500/- to the High Court
Legal Services Committee.
3. The petitioner furnishes security to the satisfaction of the
court below for the plaint claim within two months of
receiving copy of this judgment.
If all the above conditions are complied with, both Exts.P1 and P3 will
stand set aside and the learned Sub Judge will continue the
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proceedings in the suit from the stage at which the petitioner was set
ex parte and dispose of the suit in accordance with law.
The Writ Petition is disposed of as above.
(PIUS C.KURIAKOSE, JUDGE)
tgl
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