Disposed

Vaheedabhanu v. v.Ganesh

Kerala HC7 Feb 2013CRP/53/2013

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a civil revision petition challenging an order relieving an ex parte decree. The court held there was no reason to interfere, noting the petitioner failed to comply with deposit conditions and filed the revision with delay. The petitioner was directed to approach the Sub Judge for extension of time under Section 148 CPC.

What did the court decide?

This civil revision petition is disposed of. The petitioner may approach the Sub Judge for extension of time under Sec.148 of the CPC.

Vaheedabhanu Vs v.Ganesh — Execution and Attachment | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934

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CRP.No. 53 of 2013 ()

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AGAINST THE ORDER IN CMA.14/2011 IN O.S.NO.148/2009 BEFORE the MUNSIFF COURT, TIRUR DATED 19-09-2012

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REVISION PETITIONER/APPELLANT/2ND DEFENDANT:

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VAHEEDABHANU

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W/O. SAINUDHEEN, VELIYAMKODANPARAMBIL HOUSE ALATHIYOOR P.O, TIRUR TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.JAMSHEED HAFIZ

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RESPONDENTS/RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT:

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V.GANESH S/O. BALAN, PROPRIETOR UNITED TRAVELS APM SHOPPING COMPLEX, PIN - 676 101, TIRUR TALUK MALAPPURAM DISTRICT.

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SAINUDHEEN S/O. KOYAKUTTY MASTER, VELIYAMKODANPARAMBIL HOUSE ALATHIYOOR P.O - 676 102, TIRUR TALUK MALAPPURAM DISTRICT.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRP.No. 53 of 2013 ()

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE-I : ORDER IN I.A.NO.2552/2010 IN O.S.NO.148/2009 BEFORE THE MUNSIFF COURT, TIRUR DTD 09.12.2010

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RESPONDENTS' EXHIBITS: NIL

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True Copy

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P.A to Judge

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THOMAS P.JOSEPH, J. =========================

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C.R.P.No.53 of 2013

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============================ Dated this the 07^th day of February, 2013

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O R D E R

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Petitioner is the appellant in C.M.A.No.14 of 2011 of the Sub Court, Tirur and defendant in O.S.No.148 of 2009 of the Munsiff's Court, Tirur. That is a suit filed by the first respondent for recovery of money being price of air tickets (allegedly) sold to the petitioner and second respondent. An ex parte decree was passed on 18.08.2010. Petitioner filed I.A.No.2552 of 2010 on 27.09.2010 to set aside the ex parte decree. Learned Munsiff allowed that application on condition of petitioner depositing half of the decree amount including interest due till 18.08.2010 and cost on or before 23.12.2010. Petitioner did not comply with the condition. Instead, he preferred C.M.A.No.14 of 2011. That appeal was dismissed on 19.09.2012. This civil revision is against the judgment in the C.M appeal.

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It is contended that there was no necessity to deposit half of the amount as aforesaid and at any rate, furnishing security would have been sufficient. It is further contended that learned Sub Judge while dismissing C.M.A.No.14 of 2011 has not granted time to deposit the amount.

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C.R.P.No.53 of 2013

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It is within the power of the trial court while allowing to set aside the ex parte decree to impose conditions including deposit of the amount as circumstances warranted. Here, claim made by the first respondent is for recovery of money for sale of air tickets. Application for setting aside the ex parte decree was filed after 10days of the prescribed period. Assuming that a separate application for condonation of delay was not necessary, petitioner should have at least explained the delay in I.A.No.2552 of 2010. That was also not done. Still, to give petitioner an opportunity to contest the case learned Munsiff was inclined to allow I.A.No.2552 of 2010. Having regard to the claim of first respondent, a direction for deposit of half the amount of decree was made. That order was confirmed by the learned Sub Judge.

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Having heard the learned counsel I do not find reason to interfere. Moreover, I must notice that though a copy of judgment in C.M.A.No.14 of 2011 was delivered to the petitioner on 09.11.2012, this civil revision is filed only on 05.02.2013. That also persuades me not to interfere with the impugned judgment.

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It was appropriate that learned Sub Judge while dismissing the C.M appeal granted time to deposit the amount but that was not done. If petitioner is desirous of getting the ex parte

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C.R.P.No.53 of 2013

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decree set aside complying with the direction for deposit, it is open to the petitioner to approach learned Sub Judge, Tirur for extension of time under Sec.148 of the Code of Civil Procedure. If any such application is preferred, learned Sub Judge shall consider that application after hearing the first respondent also and pass appropriate orders as circumstances warranted and as law provides.

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With the above observation this revision is disposed of.

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THOMAS P.JOSEPH, JUDGE

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Sbna

Vaheedabhanu v. v.Ganesh

Case brief

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Vaheedabhanu v. v.Ganesh

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