The court dismissed a First Appeal challenging the dismissal of an application to set aside an ex parte decree and an application for condoning excessive delay. The court found no merits in the appellants' claim regarding the cause for delay and upheld the lower court's order.
The First Appeal was dismissed; no order as to costs.
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 B.KEMAL PASHA
TUESDAY, THE 3RD DAY OF JUNE 2014/13TH JYAISHTA, 1936
FAO.No. 44 of 2014 ()
------------------------------(I.A.NO.1106 OF 2012 IN O.S.NO.314 OF 1996 BEFORE THE 1ST ADDL. SUBORDINATE JUDGE'S COURT, THRISSUR.)
APPELLANT(S)/PETITIONERS IN IA/DEFENDANTS IN SUIT:
1. ELIYAS,
2. JULIE, W/O.MANITHOTTAM CHANDI, CHIYYARAM VILLAGE AND DESOM THRISSUR TALUK, PIN-680026.
3. SHYNI, D/O.MANITHOTTAM CHANDI, CHIYYARAM VILLAGE AND DESOM THRISSUR TALUK, PIN-680026.
4. ANIL, S/O.MANITHOTTAM CHANDI, CHIYYARAM VILLAGE AND DESOM THRISSUR TALUK, PIN-680026.
5. ANITHA, D/O.MANITHOTTAM CHANDI, CHIYYARAM VILLAGE AND DESOM THRISSUR TALUK, PIN-680026.
6. SUMI, D/O.MANITHOTTAM CHANDI, CHIYYARAM VILLAGE AND DESOM THRISSUR TALUK, PIN-680026.
7. ANOOP, S/O.MANITHOTTAM CHANDI, CHIYYARAM VILLAGE AND DESOM THRISSUR TALUK, PIN-680026.
BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE BY ADV. SRI. K. JAYAKUMAR(SR).
-2-
FAO 44 of 2014
RESPONDENT(S)/RESPONDENTS IN IA/PLAINTIFF IN SUIT:
SHANMUGHARAJAN,
S/O.PERUMALA NADARAJAN, THAIKKAT VILLAGE AND DESOM CHAVAKKAD TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER, RAJENDRAN S/O.PALANI ACHARI, CHIYYARAM VILLAGE AND DESOM THRISSUR TALUK, PIN-680026.
R1 BY ADV. SRI.GEORGE THOMAS (MEVADA)(SR.) R1 BY ADV. SRI.MANU GEORGE KURUVILLA R1 BY ADV. SRI.AMAL GEORGE
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 03-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.KEMAL PASHA, J.
F.A.O. No. 44 of 2014
............................................................... Dated this the 3rd day of June, 2014
J U D G M E N T
Aggrieved by order dated 24.07.2013 in I.A.1106/2012 in O.S.314/1996 of the 1st Additional Subordinate Judge's Court, Thrissur, petitioners in the I.A., who are defendants in the suit, have come up in appeal. The said I.A. before the court below, was one filed under Order IX Rule 13 CPC, for getting the exparte decree set aside. Along with the said I.A., another application as I.A.1105/12 was also filed under Section 5 of the Limitation Act seeking to condone the delay of 2192 days in filing the petition under Order 9 Rule 13 of
the CPC. The court below dismissed I.A.No.1105/12, as according to the court below the delay was not properly explained. Consequently, I.A.No.1106/12 was also dismissed as the delay was not condoned.
FAO 44 of 2014
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FAO 44 of 2014
-: 3 :-
were aware of the exparte decree on 23.01.2006 itself. It was also contended that as the appellants were represented by counsel, it could not have been said that appellants were not aware of the exparte decree. It is further contended that there is no connection between O.S.346/95 and O.S.314/96 and therefore, it is unbelievable that the appellant had believed that the suit was stayed on account of the continuation of the suit by way of A.S.674/01.
FAO 44 of 2014
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appellants have decided to file two separate I.As., one for getting the exparte decree set aside under Order 9 Rule 13 CPC and other one for getting the delay condoned under Section 5 of the Limitation Act. The court below was not satisfied with the explanation given by the appellants for condoning the inordinate delay of 2192 days caused in filing the I.A. under Order 9 Rule 13 CPC. It seems that the appellants have failed to forward any valid reason for such delay. On going through the matter, I do not find anything to interfere with the impugned order passed by the court below. This FAO is devoid of merits, and is only to be dismissed, and I do so.
In the result, this FAO is dismissed. There is no order as to costs.
Sd/- B. KEMAL PASHA, JUDGE
ul/-
[True copy]
P.S. to Judge
3 issues framed by the court
Whether the appellant was justified in filing two separate applications instead of one for setting aside the ex parte decree and condoning delay.
Whether the explanation for the inordinate delay of 2192 days in filing the application to set aside the ex parte decree was sufficient.
Whether there was any illegality or impropriety in the lower court dismissing both the applications.
2 provisions across 2 enactments
ELIYAS
JULIE
SHYNI
ANIL
ANITHA
SUMI
B.KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
