High Court Kerala High Court

Seenath vs Suseela on 26 November, 2007

Kerala High Court
Seenath vs Suseela on 26 November, 2007
       

  

  

 
 
  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.
                        --------------------------------------------
                          C.R.P. NO. 1019 OF 2004 G
                       --------------------------------------------
                   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

:: 2 ::

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

C.R.P. NO.1019 OF 2004

:: 3 ::

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

:: 4 ::

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/