The Kerala High Court dismissed this appeal filed against an order refusing to restore an application to set aside an ex parte decree due to non-deposit of terms including Rs. 90,000/. Plea that post decree interest should be 6% under Section 34 CPDB was left.
The appeal was dismissed as no merit was in restoring the application for non-compliance with conditions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 15TH DAY OF MARCH 2013/24TH PHALGUNA 1934
FAO.No. 86 of 2013 ()
I.A. NO.1411/201 IN OS.131/2006 of SUB COURT, SULTHAN BATHERY.
APPELLANT(S):PETITIONER/DEFENDANT
T.S.PAUL, S/O.SEBASTIAN, AGED 51 YEARS, THOTTITHARA HOUSE, VAZHAVATTA, MUTTIL AMSOM DESOM, VYTHIRI, WAYANAD DISTRICT.
BY ADVS.SRI.C.A.CHACKO
SMT.C.M.CHARISMA
SMT.MEGHA K.XAVIER
RESPONDENT(S):RESPONDENT/PLAINTIFF
BRANCH MANAGER, CATHOLIC SYRIAN BANK, KALPETTA BRANCH, KALPETTA AMSOM DESOM, VYTHIRI TALUK, WAYANAD.
BY ADV. SRI.K.ANAND, SC
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 15-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
F.A.O. NO.86/2013
APPENDIX
PETITIONER'S ANNEXURES
A1:- COPY OF PLAINT IN OS. 131/06 ON THE FILE OF SUB JUDGE, SULTHAN BATHERY DT. 15.9.06.
A2:- COPY OF WRITTEN STATEMENT DTD. 18.8.07 IN OS. 131/06.
A3:- COPY OF JUDGMENT DTD. 13.10.09 IN OS.131/06.
A4:- COPY OF DECREE DTD. 13.10.09 IN OS.131/06.
A5:- COPY OF EP.28/10 FILED ON 23.10.10.
A6:- COPY OF IA. 1411/11 FILED BY APPELLANT.
A7:- COPY IA. 1`410/11 FILED BY APPELLANT .
A8:- COPY OF IA. 1883/12 FILED BY APPELLANT ON 2.11.12.
A9:- COPY OF CALCULATION STATEMENT SUBMITTED BY COUNSEL FOR THE RESPONDENT IN ANNEXURE A5 PROCEEDINGS.
RESPONDENT'S ANNEXURES
NIL
//TRUE COPY//
P.A. TO JUDGE
tss
THOTTATHIL B.RADHAKRISHNAN & B.KEMAL PASHA, JJ.
F.A.O.No.86 of 2013
.................................................................... Dated this the 15th day of March, 2013.
J U D G M E N T
Thottathil B.Radhakrishnan, J.
We have heard the learned counsel for the appellant and the learned Sr.Adv.K.Anand for the Bank, quite in extenso.
This appeal is against an order by which the court below has refused to restore to file an application to set aside an ex parte decree. Notwithstanding the fact that we see that there is a judgment delivered by the court below as Ext.A3, which reflects due application of mind, the fact of the matter remains that the application to set aside the ex parte decree was filed with a delay of 698 days. The court below exercised its discretion and ordered that application as allowed on terms including deposit of `90,000/-. That was not deposited in time. Resultantly, the application to set aside the ex parte
FAO 86/13
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decree was dismissed. The defendant applied for restoration of the application under Order IX Rule 13. Though we recorded on 08.03.2013 that we do not see much merit in this appeal and the matter could go only for settlement, the controversy now is as to whether the amount covered by execution proceedings is correct. That is not a matter to be gone into by us in this appeal. The appellant would say that the post decree interest could have been only at the rate of 6% in terms of Section 34. The learned senior counsel for the Bank points out that the transaction is a commercial one, and the decree has been granted fixing the rate of post decree interest at the rate of 18%. We do not find anything to hold that the court below had acted illegally or in any manner prejudicial to the interest of the appellant in having ordered the applications only on terms, and in having ultimately dismissed the application to set aside the ex parte decree, since conditions were not complied with. Therefore, leaving open the plea of the appellant regarding the total
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outstandings, to be raised in execution stage, this appeal is
dismissed.
(THOTTATHIL B.RADHAKRISHNAN , JUDGE)
(B.KEMAL PASHA, JUDGE)
jg
3 issues framed by the court
Whether the appeal against dismissal of restoration of an application to set aside an ex parte decree, on account of non-deposit of the sum of Rs. 90,000/-, should be allowed.
Whether the rate of post decreet interest fixed by the lower court at 18% is legally sustainable.
Whether the amount covered by execution proceedings going into general entertainment needs to be gone into by this court.
2 provisions across 2 enactments
T.S.Paul
Catholic Syrian Bank, Kalpetta Branch
Thottathil B.Radhakrishnan
B.Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
