IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 271 of 2010()
1. SUDHAKARAN, S/O. SUBBAYYAN NADAR,
... Petitioner
Vs
1. SUNDARA HAJI, S/O. CHRISTUDAS,
... Respondent
2. RETNARAJ, S/O. CHRISTUDAS,
3. CHRISTI, S/O. GAMALLEL,
4. MANOHARAN, S/O. MANIYAN,
5. D. SOBHANAM,
6. RAGHAVAN, S/O. MANIYAN,
For Petitioner :SRI.P.V.BABY
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/05/2010
O R D E R
THOMAS P.JOSEPH, J.
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C.R.P. No.271 of 2010
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Dated this the 31st day of May, 2010
O R D E R
Respondent Nos.1 and 2 appear through counsel.
2. This Revision petition is at the instance of defendant
No.1 who along with others suffered an ex parte decree in O.S.
No.705 of 2006 of the court of learned Principal Munsiff,
Neyyattinkara and who attempted to get the ex parte decree set
aside after 400 days of the prescribed time but which did not not
succeed. Petitioner filed I.A. Nos.1182 and 1183 of 2008 to
condone the delay and to set aside ex parte decree. Applications
were dismissed which was confirmed by the learned Sub Judge in
C.M.A. No.32 of 2008. Learned counsel contends that dismissal of
I.A. No.1383 was solely for the reason that no medical certificate
accompanied that application. Learned counsel states that
petitioner was laid up and could not file the application on time.
3. Respondent Nos.1 and 2/plaintiffs sued petitioner and
respondent Nos.3 to 6 for a decree for prohibitory injunction
against widening of a pathway. Suit was filed under Order I rule 8
of the Code of Civil Procedure. Petitioner and respondent No.3 to
C.R.P. No.271 of 2010
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6 appeared through counsel pursuant to the summons served on
them. Thereafter they did not contest the suit and that resulted
in the ex parte decree on 21.12.2006. As per version of
respondent Nos.1 and 2, petitioner in wilful disobeyance of the
decree interfered with the suit property and even threatened
them. Local police registered a case against petitioner.
Respondent Nos.1 and 2 approached this Court by filing W.P(C)
No.4898 of 2008 seeking police protection. There a counter
affidavit was filed by the petitioner denying the allegations. This
Court as per judgment dated 18.02.2008 permitted respondent
Nos.1 and 2 to seek enforcement of the decree for prohibitory
injunction they have in their favour. Respondent Nos.1 and 2
then filed execution petition and sought execution of the decree.
It is thereafter that petitioner chose to file I.A. Nos.1182 and 1183
of 2008 to set aside ex parte decree and condone the delay.
Even as per version of petitioner he was not interested in the
subject matter of the suit. It is now stated that the decree
affected his right of access to the quarry being run by him. He
also stated that he was ill, is partially deaf and could not file
application for setting aside the ex parte decree on time. Courts
below did not accept that version.
C.R.P. No.271 of 2010
-: 3 :-
4. Even the admitted version of petitioner is that he was
not interested in the subject matter of the suit and hence he did
not choose to contest the case. If that be so there is no reason
why he should develop a post decretal interest and seek to
challenge the ex parte decree. It is obvious that applications are
filed only after police registered a case against petitioner and
pursuant to the judgment of this Court on 18.02.2008 respondent
Nos.1 and 2 tried to execute the decree and prosecute the
petitioner for the alleged wilful disobeyance of the decree. Trial
court observed that there is no merit or bona fides in the
applications and there is no sufficient cause made out to
condone the delay or to set aside the ex parte decree. Appellate
court has confirmed that. On going through the impugned order
and judgment and hearing learned counsel, I do not find reason to
differ. As such I do not find reason to interfere with the impugned
order and judgment in this Revision.
Civil Revision Petition fails and it is dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv