The High Court dismissed the Family Appeal challenging the lower court's order rejecting an Ex Parte decree setting aside application. The court held that the appellants' delay was due to negligence, not justified by bereavement, and prior苏打 which events like SARFAESI or cheque bounce did not warrant setting aside the decree.
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 K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 20TH DAY OF NOVEMBER 2014/29TH KARTHIKA, 1936
FAO.No. 336 of 2014 ()
APPELLANT(S)/PETITIONERS/DEFENDANTS:
BY ADV. SRI.JACOB SEBASTIAN
RESPONDENT/RESPONDENT/PLAINTIFF:
STATE BANK OF TRAVANCORE BY ITS MANAGER, VALANCHERRY BRANCH, MALAPPURAM PIN-676552.
R1 BY ADV. SRI.T.SETHUMADHAVAN (SR.) R1 BY ADV. SRI.PUSHPARAJAN KODOTH R1 BY ADV. SRI.K.JAYESH MOHANKUMAR
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.T.SANKARAN & P.D.RAJAN, JJ
......................................... F.A.O No. 336 of 2014 ......................................... Dated 20th November, 2014
JUDGMENT
K.T.SANKARAN,J
The appellants are the defendants in O.S.No.182 of 2011 of Sub Court, Tirur filed by the State Bank of Travancore, Valanchery Branch for realisation of a sum of Rs.9,88,602/with interest. The suit was filed by the bank since the defendants failed to remit the amounts payable towards a loan taken by them for purchasing a car. The suit was decreed exparte on 31.1.2012.
exparte decree. There was delay of 711 days in filing the application under Rule 13 of Order IX of Code of Civil Procedure. Court below dismissed the application to set aside the exparte decree and the prayer for condoning the delay. The defendants have filed the FAO challenging that order.
FAO 336/2014
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before court and file a written statement. Thereafter, they received notice in the execution proceedings and only at that time, they came to know that an exparte decree was passed on 31.1.2012.
FAO 336/2014
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for filing the written statement. That application was also allowed and time was granted till 13.1.2012. Even thereafter, the defendants did not file the written statement. Thereafter an exparte decree was passed on 31.1.2012. The court below held that defendants were negligent in prosecuting the case. The court below did not believe the case put forward by the petitioners that they came to know of the decree only when the notice was received in execution proceedings. It was held
that the attempt of the petitioners is to delay the execution of the decree.
FAO 336/2014
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statement; or if these events took place thereafter the petitioners could very well raise it at the appropriate stage in execution. That is not a ground to set aside the exparte decree. For the aforesaid reasons, the F.A.O is dismissed.
K.T.SANKARAN, JUDGE
P.D.RAJAN, JUDGE
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3 issues framed by the court
Whether the High Court should set aside the lower court's order dismissing the application under Order IX Rule 13 CPC to condone a 711 day delay and set aside an Ex Parte decree.
Whether the appellants' failure to file a written statement despite multiple adjournments and notices justifies the rejection of their plea to treat the Ex Parte decree as incorrect.
If the respondents initiated proceedings under the SARFAESI Act or lodged a complaint under Section 138 NI Act, would such discretion allow them to raise these facts later in execution proceedings ins
1 provisions across 1 enactments
Alikutty
Nafeesa
State Bank of Travancore
K.T. Sankaran
P.D. Rajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
