IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1098 of 2010(O)
1. SIMIOS S/O.FRANCIS,KUNNATH HOUSE,
... Petitioner
Vs
1. TOMY S/O.SCARIA,
... Respondent
For Petitioner :SRI.P.V.ELIAS
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/12/2010
O R D E R
THOMAS P.JOSEPH, J.
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O.P(C) No.1098 of 2010
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Dated this the 13th day of December, 2010
J U D G M E N T
Defendant in O.S. No.332 of 2006 of the court of learned
Munsiff, Muvattupuzha is the petitioner before me. He suffered an
ex parte decree on 17.07.2007 and filed application to set aside
that ex parte decree. Learned Munsiff was not inclined to accept
the prayer and dismissed the application. Petitioner took up the
mater in appeal – C.M.A. No.32 of 2008. Appellate court allowed
the appeal and application to set aside the ex parte decree as per
judgment dated 28.04.2009 on condition of petitioner depositing
Rs.10,000/- in the trial court on or before 01.06.2009. The amount
was not deposited and consequently the C.M. Appeal stood
dismissed. This petition under Article 227 of the Constitution is
filed challenging that part of the judgment in C.M.A. No.32 of 2008
directing deposit of the amount. Learned counsel submits that
petitioner was not able to deposit the amount on time on account
of financial stringency as he was out of station and as the file was
misplaced. Petitioner alternatively requested time to deposit the
amount and contest the suit.
O.P(C) No.1098 of 2010
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2. Having heard learned counsel and going through the
order and judgment under challenge I am not inclined to allow any
of the prayers made. The suit for money was filed in the year
2006 and there was an ex parte decree on 17.07.2007. On
28.04.2009 appellate court allowed the C.M. Appeal and the
application to condone the delay on condition of petitioner
depositing Rs.10,000/- in the court below on or before
01.06.2009. It is not as if petitioner was not given sufficient time
to deposit the amount. He had more than a month’s time to
deposit the amount. Assuming that he could not deposit the
amount within the time granted, he could have requested the
appellate court for extension of time if valid reasons existed. That
also was not done. The C.M. Appeal was dismissed for non-
compliance of the condition imposed. This petition is filed on
06.12.2010 seeking to set aside the condition imposed in the
judgment in C.M.A. No.32 of 2008. A party cannot afford to be so
lethargic in his conduct and be under the impression that any
laches on his part will be condoned by the superior courts at
some stage. I am also to bear in mind the claim of respondent
who filed the suit in the year 2006 for recovery of money and the
ex parte decree was passed on 17.07.007 for no fault of his. I do
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not find reason to interfere.
Original Petition fails. It is dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv