Allowed

Surendran v. Prasad

Kerala HC19 Jan 2017OP(C)/1849/2015

Case brief

AI extract

What is this about?

The High Court examined an original petition challenging the setting aside of an ex parte decree due to condoned delay. The court held the lower court justified in setting aside the decree for a boundary suit but increased the cost payable by the respondent to 2,000/- as additional compensation. Petition disposed with modification.

What did the court decide?

Petition allowed with modification; respondent directed to pay an additional 2,000/- as cost.

Surendran Vs Prasad — Specific Performance | Kerala HC (2017)

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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 A.MUHAMED MUSTAQUE

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THURSDAY, THE 19TH DAY OF JANUARY 2017/29TH POUSHA, 1938

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OP(C).No. 1849 of 2015 (O)

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IA.1905/2014 & IA.1906/2015 IN OS.491/2012 OF MUNSIFF COURT, KOTTARAKKARA

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PETITIONER(S)/RESPONDENT IN IA/PLAINTIFF :

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SURENDRAN, AGED 64 YEARS,

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S/O. MADHAVAN, LEKSHMI BHAVAN, IRUMPANANGADU MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.

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BY ADV. SRI.K.V.ANIL KUMAR

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RESPONDENT(S)/PETITIONERS IN IA/DEFENDANTS :

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1. PRASAD,

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S/O. GOPINATHAN, 'ISWARIYA', EZHUKONE MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691 505.

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2. THANKAMONY, D/O. DEVAYANI, GOPI VILASOM, EZHUKONE MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.

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BY ADV. SRI.SAJU S.A.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP(C).No. 1849 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 COPY OF JUDGMENT DTD.1.8.2013 IN OS 491/2012 ON THE FILE OF THE MUNSIFF COURT, KOTTARAKKARA.

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P2 COPY OF THE EXECUTION PETITIO AS EP NO.11/2014 IN OS 491/2012 ON THE FILE OF THE MUNSIFF COURT, KOTTARAKKARA.

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P3 COPY OF THE IA NO.1906/2014 IN OS 491/2012 ON THE FILE OF THE MUNSIFF COURT, KOTTARAKKARA.

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P4 COPY OF THE IA NO.1905/2014 IN OS 491/2012 ON THE FILE OF THE MUNSIFF COURT, KOTTARAKKARA.

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P5 COPY OF THE COMMON ORDER DTD.13.3.2015 IN IA NO.1905/2014 & IA NO.1906/2014 IN OS NO.491/2012 OF THE MUNSIFF COURT, KOTTARAKKARA.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

msv/

A.MUHAMED MUSTAQUE, J.

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O.P.(C).No.1849 of 2015

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------------------------------------------------------------------Dated this the 19^th day of January, 2017

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J U D G M E N T

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The petitioner is the plaintiff in O.S.No.491 of 2012, in a suit for fixation of boundary and injunction. The suit was decreed ex parte. Thereafter, he filed an execution petition. In execution proceedings steps were taken to fix the boundary and it appears that execution proceedings were concluded. In the mean while, the defendant filed an application to set aside the ex parte decree along with condonation of delay of 220 days. This was allowed by the court below. Aggrieved by the above, this original petition is filed. The learned counsel for the petitioner submits that there is no reason to condone the delay, further he had incurred huge expense for executing the decree. This Court in several judgments held that court should be liberal in setting aside the ex parte decree. Considering the fact that this is a suit for fixation, this Court is of the view that the court below is justified in setting aside the ex parte decree. However, it is to be noted that a cost of 2,000/- was imposed as a condition. This₹ was perhaps taking note of the fact that the plaintiff filed

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O.P.C.No.1849/2015

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execution petition and incurred expenses. This Court is of the view that considering the delay of 220 days and the fact that execution petition was filed and decree was executed, the cost allowed was too low. The defendant is also directed to pay an additional sum of 2,000/- in addition to the cost imposed by the₹ court below. With the above modifications the original petition is disposed of. The cost shall be paid to the counsel appearing in this Court, within three weeks.

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Sd/- (A.MUHAMED MUSTAQUE, JUDGE)

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TRUE COPY

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P.A.TO JUDGE

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Surendran v. Prasad

Case brief

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Surendran v. Prasad

Case brief

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