The High Court dismissed the civil revision petition challenging the dismissal of a remedy to set aside an ex parte decree and the rejection of a delay condonation application in a money recovery suit.
The civil revision petition is dismissed, dismissing the petition for condonation of delay and the consequential civil revision petition.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
FRIDAY, THE 1ST DAY OF FEBRUARY 2013/12TH MAGHA 1934
CRP.No. 526 of 2012 (A)
[AGAINST THE JUDGEMENT DTD. 20/07/2012 IN C.M.A. NO.14/2012 AND ORDER DTD. 20/07/2012 IN I.A. NO. 340/2012 OF THE DISTRICT COURT, THALASSERY]
REVISION PETITIONER/APPELLANT/PETITIONER:
M.VIJAYA KUMAR, AGED 46 YEARS, S/O.KUNHIKANNAN, RESIDING AT NEAR DHANALAKSHMI RICE MILL, EZHOME AMSOM, DESOM, P.O.EZHOME, KANNUR DISTRICT.
BY ADVS.SRI.P.R.SREEJITH, SRI.M.PROMODH KUMAR.
RESPONDENT/RESPONDENT/RESPONDENT:
PARAYIL KUNHIRAMAN, AGED 61 YEARS, S/O.KANNAN, VARIYIL HOUSE, EZHOME AMSOM DESOM, P.O.EZHOME, KANNUR DISTRICT- 670 334.
BY ADV. SRI.O.V.MANIPRASAD.
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Prv.
THOMAS P. JOSEPH, J. ===================== Civil Revision Petition No.526 of 2012
============================== Dated this the 1st day of February, 2013
O R D E R
Petitioner is the defendant in O.S. No. 52 of 2007 of the Sub Court, Payyannur. That is a suit filed by the respondent for recovery of money. An ex parte decree was passed. Trial court refused to set aside the ex parte decree. That order was challenged in CMA No. 14 of 2012. As the said appeal was filed after the prescribed time, petitioner filed I.A No. 340 of 2012 to condone the delay. That application was dismissed and the CM appeal was also dismissed. Hence this civil revision.
C.R.P. No.526 of 2012 -: 2 :-
Financial Enterprises Limited (for short "KSFE"). Respondent, a close relative was the guarantor. The petitioner did not discharge that liability. The KSFE initiated proceeding for recovery of the amount under Revenue Recovery Act and property of respondent was proceeded against. At that stage, respondent had to sell a portion of his property to discharge the liability to the tune of Rs.2,12,040/-. Later, respondent filed the suit against petitioner claiming Rs.1,20,000/- with interest. According to the learned counsel, respondent confined his claim to Rs. 1,20,000/- since he was not able to pay the entire court fee payable for the whole amount which respondent was otherwise entitled to realise from the petitioner.
C.R.P. No.526 of 2012
-: 3 :-
09.09.2010. On that day, petitioner and counsel remained absent. Hence an ex parte decree was passed in favour of the respondent.
C.R.P. No.526 of 2012
-: 4 :-
respondent would point out that the same reason was stated when petitioner was set ex parte on 06.07.2009 but that ex party order was set aside. Assuming that petitioner was on duty, he had the obligation to inform his counsel about that and make necessary arrangements. That also was not done. Counsel also was not present.
C.R.P. No.526 of 2012
-: 5 :-
think that attempt of petitioner is only to protract and delay the proceedings. Litigants shall not be under the impression that the superior courts are there to condone any and every laches on their part. Here is a case where there is a contumacious negligence on the part of petitioner and I stated, apparent attempt of petitioner to protract the proceeding. In that view of the matter, I am not inclined to interfere with the dismissal of I.A. No. 340 of 2002 and the consequential dismissal of C.M.A. No. 14 of 2012.
Civil revision is dismissed.
Sd/- THOMAS P.JOSEPH, JUDGE
smv
//True copy//
P.A. To Judge
1 issue framed by the court
Whether the High Court should interfere with the dismissal of the civil revision petition and the consequential dismissal of the condonation of delay application.
M.Vijaya Kumar
Parayil Kunhiraman
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
