Allowed

Balakrishna Kurup v. Vishnu Nampoothiri

Kerala HC27 Jan 2016FAO/250/2015

Case brief

AI extract

What is this about?

The Kerala High Court set aside orders dismissing appeals to condone delay in setting aside an ex parte decree. The court upheld the appellants' claim of illness-induced delay and directed the trial court to try the suit within six months following payment of costs.

What did the court decide?

Impugned orders setting aside the ex parte decree and dismissing I.As. were set aside subject to payment of costs; suit to be disposed within six months.

Balakrishna Kurup Vs Vishnu Nampoothiri — Execution and Attachment | Kerala HC (2016)

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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 ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937

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FAO.No. 250 of 2015

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AGAINST THE COMMON ORDER IN I.A.NOS.1197/15 & 1198/15 IN O.S.67/2014 of SUB COURT, KARUNAGAPPALLY, DATED 31.10.2015

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APPELLANTS/PETITIONERS:

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BALAKRISHNA KURUP, AGED 88 YEARS, NEPHEW OF ISWARA KURUP, MEKKATTU VEEDU, THAZHATHU MURI PAVITHRESWARAM VILLAGE, NOW RESIDING AT 25A, LMS NAGAR MUTTADA, THIRUVANANTHAPURAM.

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SUBHADRA KUNJAMMA AGED 76 YEARS W/O.BALAKRISHNA KURUP, MEKKATTU VEEDU, THAZHATHU MURI PAVITHRESWARAM VILLAGE, NOW RESIDING AT 25A, LMS NAGAR MUTTADA, THIRUVANANTHAPURAM.

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GEETHA KUNJAMMA AGED 56 YEARS D/O.BALAKRISHNA KURUP, MEKKATTU VEEDU, THAZHATHU MURI PAVITHRESWARAM VILLAGE.

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BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX

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RESPONDENT/RESPONDENT:

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VISHNU NAMPOOTHIRI UTHIRAPPALLY, PRANAVAM, THEVANNOOR MURI ELAMADU VILLAGE, KOTTARAKKARA, PIN-691 506.

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R1 BY ADV. SRI.V.M.KURIAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & A.HARIPRASAD, JJ.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.250 of 2015

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27^th day of January, 2016

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JUDGMENT

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Antony Dominic, J.

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Defendants in O.S.67/14 on the file of the Sub Court, Karunagappally are the appellants. The suit in question was originally filed as O.S.114/09 before the Sub Court, Karunagappally. Subsequently, the suit was transferred to the Sub Court, Karunagappally and was renumbered as O.S.67/14. The appellants, being the defendants in the suit, entered appearance and had filed the written statement. Subsequently, the case was listed on 1.4.2015 for trial. On account of the absence of the appellants, the case was adjourned to 7.4.2015, when also they were absent and were set ex parte. Accordingly, the suit was partly decreed entitling the respondent to realise Rs.5,00,000/- with interest at the rate of 6% from the date of suit with proportionate cost. Execution proceedings were initiated and an order of attachment was also obtained by the decree holder. Subsequently, I.A.No.1197/15 was filed by the appellants to set aside the ex parte decree along with I.A.No.1198/15 to condone the delay

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F.A.O.No.250 of 2015

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in filing the petition to set aside ex parte decree. By the order impugned, the court below declined to condone the delay and accordingly dismissed both the I.As. It is challenging those common orders, the appeal in question is filed.

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We heard the counsel for the appellants and the learned counsel for the decree holder respondent.

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According to the learned counsel for the appellant, the absence of the appellants and the delay that was caused in making the applications were not deliberate, but arose on account of the ailment of the first appellant and on account of the communication gap with the counsel who appeared in the trial court. However, on behalf of the respondents it is pointed out that these contentions were not proved to the satisfaction of the court and that the delay was not satisfactorily explained.

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Having considered the rival submissions made, we feel that it is the specific case of the appellants that the delay has occurred on account of the illness of the first appellant, who is more than 88 years old. It is also their specific case that the second appellant was the only person who could

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F.A.O.No.250 of 2015

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: 3 :

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look after the first appellant. According to the appellants, they were also not given timely information by the counsel who appeared for them and that it was on account of these reasons that the ex parte decree happened to be passed and the delay occurred to file the petition to set aside the ex parte decree. Although it is true that these contentions raised by the appellants were not proved by adducing oral evidence before the trial court, the fact remains that there is no material before the trial court to accept the contention to the contrary canvassed by the respondents.

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Having regard to the settled position of law that in an application for condonation of delay, the court should take a liberal approach and also having regard to the aforesaid explanation offered by the appellants and taking into account the fact that the entire decree debt is available in deposit before the court below, we are inclined to think that the appellants should be given an opportunity to contest the suit on merits. With that in mind, we set aside the orders impugned subject to the appellants paying cost of Rs.5,000/- to the respondent within three weeks from today and on production of memo evidencing the payment of cost to the respondent

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F.A.O.No.250 of 2015

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: 4 :

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before the court below, the court below will try and dispose of the suit as expeditiously as possible. Taking note of the fact that the suit was filed way back in 2009, it is ordered that the court below shall dispose of the suit

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within six months on receipt of a copy of the judgment.

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Sd/- ANTONY DOMINIC

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JUDGE

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Sd/- A.HARIPRASAD JUDGE

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jes

Balakrishna Kurup v. Vishnu Nampoothiri

Case brief

What is this about?

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Balakrishna Kurup v. Vishnu Nampoothiri

Case brief

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What did the court decide?

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