This First Appeal challenged the order confirming an ex parte decree due to the appellant's failure to furnish adequate security within the stipulated time as conditioned for setting aside the ex parte order.
The appeal was dismissed; the additional security offered was rejected; the ex parte decree dated 14.06.2011 was confirmed.
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.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN
TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940
FAO.No. 103 of 2018
AGAINST THE ORDER/JUDGMENT IN OS 78/2010 of SUB COURT, PALA DATED 13-12-2017
APPELLANT(S)/PETITIONER/DEFENDANT:
TOMY MATHEW, S/O.MATHEW, AGED 47, MANJAPPILLIYIL HOUSE, PADINJATTINKARA P.O., PADINJATTINKARA, PULIYANNOOR VILLAGE.
BY ADV.SRI.A.K.ALEX
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
SIBY C. JOSE, S/O.JOSEPH, CHITTETHU HOUSE, KIZHATHODIYOOR P.O., KIZHATHODIYOOR KARA, LALAM VILLAGE.
R1 BY ADV. SRI.ROY CHACKO R1 BY ADV. SRI.K.C.VINCENT
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. HARILAL & ANNIE JOHN, JJ.
------------------------------------------FAO No. 103 of 2018
-----------------------------------------Dated this the 7th day of August, 2018.
JUDGMENT
K. Harilal,J.
The appellant is the defendant in O.S No. 78 of 2010 on the files of the Sub Court, Pala. The aforesaid suit was filed by the respondent herein for recovery of amount of Rs.2,49,200/- with interest from the appellant/defendant. The said suit was decreed ex parte . Though the appellant/defendant has filed I.A No. 1954 of 2013 for setting aside the said ex parte decree along with I.A. No. 1955 of 2013 for condoning the delay of 905 days, both IAs were dismissed by the court below. Aggrieved by the said order, the appellant has approached this Court by filing an appeal. This Court, as per order dated 13.03.2015, allowed the said petitions on conditions that the appellant/defendant should pay a cost of Rs.10000/- to the respondent/plaintiff, and that he should furnish adequate security for the decree amount to the satisfaction of the court below within two months. In compliance with the said order, though the appellant/defendant had offered a property covered by sale deed No. 3474/2003, the same was objected by the respondent/plaintiff on the ground that the said property has already been attached by the court below in some other case and is not sufficient to cover adequate security for the decree debt. No valuation statement has been produced and no other material has been
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produced to show that the property is having a value enough to cover sufficient security for the decree debt. After considering the objection, the court below found that the security furnished by the appellant/defendant is not sufficient to satisfy the decree amount. Later, the appellant/defendant produced another settlement deed No. 720/2002 in his favour with regard to 35.33 Ares of property and filed another affidavit offering the said property as additional security. In the said affidavit also, there is no mention regarding the value of the property and it is stated that the additional security has been offered since the respondent/plaintiff contended that the property offered earlier is not sufficient to cover adequate security for the decree debt. The respondent/plaintiff objected the acceptance of the additional security contending that the time granted by this Court to furnish security was expired and the appellant/defendant failed to furnish security within the specified time. As per the conditional order granted by this Court to set aside the ex parte order, in case of non-compliance of the conditions within the specified period, the applications to set aside the ex parte order would stand dismissed. In view of the rival pleas, the court below considered the point whether the appellant/defendant had complied with the conditions imposed by this Court in its order dated 17.03.2017 within the stipulated time and rejected the additional security offered by the appellant/defendant on a finding that the security was not furnished
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within the stipulated time, as directed by this Court. The legality and correctness of the aforesaid finding is challenged in this appeal.
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decree dated 14.06.2011 is confirmed. Accordingly, the additional security offered by the appellant /defendant was rejected and it was declared that the appellant/defendant failed to comply with the conditions to set aside the ex parte decree after condoning the delay. We do not find any kind of illegality or impropriety in the said finding. As rightly observed by the court below, the ex parte decree would stand in force.
Accordingly, this FAO is dismissed.
K. HARILAL, JUDGE.
ANNIE JOHN, JUDGE.
Rv
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2 issues framed by the court
Whether the court below was justified in confirming the ex parte decree for non-compliance with the condition to furnish sufficient security within the stipulated time.
Whether the delay in offering additional security, without extension of time from the appellate court, rendered the additional security insufficient.
TOMY MATHEW
SIBY C. JOSE
K. HARILAL
ANNIE JOHN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
