IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15866 of 2009(O)
1. KALIYAPPAN, AGED 61 YEARS,
... Petitioner
Vs
1. K.E.ABEAL, S/O.ITTIYAVIRA,
... Respondent
For Petitioner :SRI.K.S.HARIHARAPUTHRAN
For Respondent :SRI.N.SUKUMARAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :27/07/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.15866 of 2009
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Dated: 27th July, 2009
JUDGMENT
The Writ Petition is filed seeking the following reliefs:
1. To call for the records which lead to the issuance of Exts.P1 and P2
and to issue a writ in the nature of certiorari or any other appropriate
writ order or direction quashing the same.
2. To issue appropriate writ order or directions to the learned
execution court to take stay all further proceedings execution of the
decree in O.S.No.290/2000 on the file of the Munsiff’s Court,
Devicolam.
3. Such other reliefs and costs as this Hon’ble Court may deem fit and
proper to grant in the nature and circumstances of the case.
2. The petitioner is the defendant in O.S.No.290/2000 on the
file of the Munsiff Court, Devikulam. Suit was for money based on a
promissory note which was decreed ex parte. An application moved
by the petitioner to set aside the ex parte decree under Order 9 Rule
13 of the C.P.C. with a petition to condone the delay was dismissed
for default. The restoration petition moved for taking back that
application was also dismissed. Petitioner, thereupon, preferred an
appeal as C.M.Appeal No.85/06 before the District Court,
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Thodupuzha. The appeal, after being entertained and taken on file,
was dismissed as not maintainable. Propriety and correctness of the
orders as above is challenged by the petitioner in the Writ Petition
invoking the supervisory jurisdiction vested with this court under
Article 227 of the Constitution of India.
3. I heard the learned counsel on both sides. Having regard to
the submissions made and taking note of the facts and circumstances
presented with reference to the impugned orders, I find, an
opportunity can be extended to the petitioner to have a decision on
merits, subject to terms compensating the injury that is likely to be
suffered by the respondent/plaintiff in reversing the ex parte decree
passed as early as on 27.11.2001. Learned counsel for the
respondent raised serious objections submitting that the dismissal of
the petitions moved by the petitioner for setting aside the ex parte
decree was on account of the deliberate laches and culpable
negligence. Whatever that be, so far as practicable a decision has to
be rendered on merits unless it is established that the conduct of the
party is such which disentitled him from seeking discretionary relief
for setting aside a decree which had been passed ex parte against
him. Though there appears to be laches on the part of the petitioner
W.P.C.No.15866/09 – 3 –
in prosecuting the applications moved for restoration, but to shut the
doors of the court against him to suffer an ex parte decree providing
him no opportunity to have a decision on merits, it must be shown
that his conduct was so contumacious and there was wilful laches on
his part in prosecuting the petitions. I do not find any circumstances
in the present case to hold the petitioner culpable of such conduct. All
the same, the injury likely to be suffered by the respondent has to be
taken due note of in setting aside the Ext.P3 judgment. So much so,
on condition of the petitioner paying a cost of Rs.10,000/- to the
respondent towards preparation of the injury likely to be suffered by
him, the ex parte decree shall be set aside. Cost ordered shall be paid
to the counsel appearing for the respondent before this court within
one month from the date of this judgment. If cost is not paid within
the stipulated time as directed above, the Writ Petition shall stand
dismissed. It is also further directed that the property of the
petitioner which had been proclaimed for sale pursuant to the
execution taken on the basis of the ex parte decree shall be furnished
as security by the petitioner towards satisfaction of the decree which
may be passed in the suit after trial on the ex parte decree being set
aside subject to payment of cost as indicated above. The execution
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proceedings from the ex parte decree shall be kept in abeyance for a
period of 45 days from the date of this judgment. If cost is not paid
and the Writ Petition is dismissed, the execution court shall proceed
with the execution of the ex parte decree for realisation of the decree
debt. The Writ Petition is disposed as indicated above.
Post for compliance after one month.
srd S.S. SATHEESACHANDRAN, JUDGE