Dismissed

Rajendrakumar v. Mercy George

Kerala HC12 Feb 2019FAO/265/2016

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a first appeal against an order rejecting petitions to set aside an ex parte decree and condone a delay of 1228 days. The court held the appellant lacked bona fides, citing evidence that he had previously filed motions admitting debt readiness but failed to repay, and filed a written statement years prior.

What did the court decide?

The First Appeal filed by the appellant was dismissed, thereby dismissing the petitions to set aside the ex parte decree and condone delay.

Rajendrakumar Vs Mercy George — Civil Procedure and Limitation | Kerala HC (2019)

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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 K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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TUESDAY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940

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FAO.No. 265 of 2016

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AGAINST THE ORDER/JUDGMENT IN OS 106/2011 of ADDITIONAL SUB COURT, IRINJALAKUDA DATED 24-09-2016

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APPELLANT/PETITIONER/DEFENDANT:

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RAJENDRAKUMAR,

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AGED 51, S/O.MAZHUVAMPILLY MANI, CHALAKUDY DESOM, EAST CHALAKUDY VILLAGE, CHALAKUDY TALUK.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT/S:

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1 MERCY GEORGE,

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AGED 60, W/O.ALOOKARAN GEORGE, NELLAYI DESOM, PARAPUKARA VILLAGE, MUKUNDAPURAM TALUK. 680 001.

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2 JOMY GEORGE, AGED 39, S/O.ALOOKARAN GEORGE, NELLAYI DESOM, PARAPUKARA VILLAGE, MUKUNDAPURAM TALUK. 680 001.

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3 MEJO GEORGE, AGED 35, S/O. ALOOKARAN GEORGE, NELLAYI DESOM, PARAPUKARA VILLAGE, MUKUNDAPURAM TALUK. 680 001.

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4 JESTO GEORGE, AGED 25, S/O.ALOOKARAN GEORGE, NELLAYI DESOM, PARAPUKARA VILLAGE, MUKUNDAPURAM TALUK. 680 001.

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BY ADVS.

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SRI.C.HARIKUMAR SRI.P.S.SIDHARTHAN SRI.RENJITH RAJAPPAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

F.A.O.265/2016

JUDGMENT

K.Harilal, J.

The appellant is the defendant, who is confronting with an ex parte decree passed against him in O.S.106 of 2011. He filed I.A.No.300 of 2016 and 301 of 2016 in the said original suit to set aside ex parte decree and to condone delay of 1228 days in filing I.A.No.300 of 2016. According to the petitioner, even though he had received a summons, he could not appear before the court and file a written statement as he was staying away from his home due to the pendency of several other cases against him. Respondent contended that the appellant was fully aware of the proceedings in the original suit and he was staying away willfully with an intend to cause delay in disposal of the original suit.

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On the aforesaid rival pleadings the appellant

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was examined as PW1 and defendant has produced Ext.P1 and P2. After considering the evidence on record the court below found that there is no bona fide in the

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averments in both petitions and the cause of delay projected in I.A.No.301 of 2016 is a false story. On

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F.A.O.265/2016

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the above premises the court below dismissed both the

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applications by common order. The legality and correctness of this order is assailed in this appeal.

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Heard the learned counsel for the petitioner and the learned counsel for the respondent.

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It is the case of the petitioner that even

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though he has received summons he could not appear before the court and file written statement, since he

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was staying away from his home due to the pendency of several cases against him. But the court below has noticed the fact that the petitioner had filed written statement on 15.08.2011. Further, Exts.B1 and B2 are

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the petitions filed by the petitioner to adjourn the sale in the execution proceedings. Ext.B1 is filed on 13.01.2016 and Ext.B2 is filed on 11.02.2016. In both the petitions petitioner had stated that he is ready to repay the decree debt. But he did not repay the decree debt as promised by him before the court. Thereafter, the aforesaid petitions, IA 300/2016 and IA 301/2016, have been filed on 23.07.2016. Obviously, the aforesaid petitions lack bona fide and it is the result of an

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F.A.O.265/2016 4

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after thought. The aforesaid applications are intend to cause delay in execution of the decree only. Thus, we find that Exts.B1 and B2 would falsify the contention raised by the petitioner. We do not find any reason to interfere with the impugned order under challenge. Hence, this FAO will stand dismissed.

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Sd/-

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K.HARILAL JUDGE Sd/ANNIE JOHN JUDGE

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Rajendrakumar v. Mercy George

Case brief

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Rajendrakumar v. Mercy George

Case brief

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