Allowed

Noushad v. Basheer

Kerala HC15 Jan 2016FAO/258/2015

Case brief

AI extract

What is this about?

This court allowed the appeal against an order dismissing an application to set aside an ex parte decree due to delay. It held the appellant could not suffer due to counsel's lapse and directed them to file an application for condonation of delay under Section 5 of the Limitation Act. Upon compliance, the trial court must reconsider the matter, and execution proceedings are stayed pending such ord

What did the court decide?

The appellant was directed to file an application for condonation of delay under Section 5 of the Limitation Act within three weeks; the impugned order was set aside and the trial court was directed t

Noushad Vs Basheer — 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

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937

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FAO.No. 258 of 2015 ()

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AGAINST THE ORDER DATED 25.09.2014 IN IA NO.261/2014 IN OS NO.293/2009 OF SUB COURT, KOTTARAKKARA.

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APPELLANT(S)/DEFENDANT:

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NOUSHAD AGED 48 YERAS, S/O.ALIYARUKUNJU RESIDING AT ANSI MANZIL, VALAVUPACHA MURI CHITHARA VILLAGE, KOTTARAKARA TALUK REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, NAVAS AGED 43, S/O.ALIYARU KUNJU, THADATHIVILA VEEDU VALAVUPACHA, CHITHARA, KOTTARAKARA TALUK.

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BY ADVS.SRI.THIRUMALA P.K.MANI SRI.D.DIPU

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RESPONDENT(S)/PLAINTIFF:

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BASHEER

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S/O.KASIMKUNJU, RESIDING AT AJMAN MANZIL BOUNDER JUNCTION, KOCHUVILA PO, PERINGAMALA VILLAGE NEDUMANGADU TALUK THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.A.M.NASEER BY ADV. SRI.REJI GEORGE

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 15-01-2016, 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.258 of 2015

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Dated this the 15^th day of January, 2016

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JUDGMENT

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Antony Dominic, J.

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Heard the learned counsel for the appellant and the learned counsel appearing for the respondent.

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This appeal is filed by the defendant in O.S.No.293 of 2009 on the file of the Sub Court, Kottarakkara, who is aggrieved by the order passed by the trial court dismissing I.A.No.261 of 2014, filed under Order IX Rule 13 of the Code of Civil Procedure (in short, “CPC”) seeking to set aside the exparte decree passed against him on 06.11.2013. The order impugned itself would show that the application under Order IX Rule 13 CPC was filed belatedly. The said application was not accompanied by an application for condonation of delay. In such a situation, the court below could not have passed an order other than the one dismissing the application filed under Order IX Rule 13 CPC. Though for the said reason, the order impugned cannot be faulted, memorandum of appeal shows that the specific case of the appellant is that the said situation including the delay has occurred on account of the lapses of Advocate Shri Raveendra

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FAO No.258/2015

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Kumar, who was appearing for him before the trial court. It is also averred that aggrieved by the alleged lapses on the part of his counsel, he has already made a complaint to the Bar Council of Kerala, which is now pending before the complaint committee as complaint No.115 of 2015.

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Evidently the case of the appellant is that he was put to the present position on account of the lapses of his counsel. Law is settled that, a client cannot be made to suffer on account of the lapses of his counsel. Taking into account the said principle, we are inclined to think that to meet the ends of justice, the proper course is to set aside the order impugned and direct the Sub Court, Kottarakkara to reconsider I.A.No.261 of 2014, provided the appellant makes an application under Section 5 of the Limitation Act for condonation of delay in filing I.A.No.261 of 2014, within three weeks from today. It is directed that if such an application is filed, the said application, along with I.A.No.261 of 2014 in O.S.No.293 of 2009, will be considered by the trial court with notice to the respondent and orders thereon will be passed in accordance with law as expeditiously as possible.

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Taking note of the submission made by the learned counsel for the appellant that E.P.No.113 of 2014 filed by the respondent/decree holder is pending and is posted for proclamation of sale, we direct that subject to the appellant filing interlocutory application as directed above, till fresh

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FAO No.258/2015 3

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orders are passed by the Sub Court, Kottarakkara, further proceedings in the execution petition will stand stayed.

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Appellant shall produce a copy of this judgment before the trial court for information and necessary action.

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ANTONY DOMINIC, JUDGE.

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A. HARIPRASAD, JUDGE.

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cks

Noushad v. Basheer

Case brief

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What did the court decide?

Noushad v. Basheer

Case brief

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