Dismissed

Vijayalakshmi v. Sundaran

Kerala HC13 Dec 2022FAO/109/2022

Case brief

AI extract

What is this about?

This judgment dismisses an appeal against an order refusing to condone an inordinate delay of 2465 days in setting aside an ex parte decree. The Court held that the appellants failed to prove their allegations and the lower court's finding that the delay was not justified was upheld based on record evidence regarding the registration of the sale deed.

What did the court decide?

Prayer for condonation of delay and setting aside the ex parte decree was declined; Appeal dismissed.

Vijayalakshmi Vs Sundaran — Property and Title | Kerala HC (2022)

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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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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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TUESDAY, THE 13^TH DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944

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FAO NO. 109 OF 2022

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[AGAINST THE ORDER IN IA 2197/2016 IN OS 729/2008 OF II ADDITIONAL SUB COURT,THRISSUR]

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APPELLANTS/PETITIONERS 2 TO 4/LEGAL HEIRS OF DEFENDANT:

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1 VIJAYALAKSHMI AGED 54 YEARS W/O. ATHRAPPULLY SUDHAKARAN, KARIKKAD DESOM, VILLAGE & POST, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680519.

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2 BEENA, AGED 52 YEARS W/O. VADAKKOOTT SOMAN, ERANELLUR VILLAGE, DESOM & POST, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN - 680519.

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3 BINDU, AGED 50 YEARS W/O. KUTTIYERI MANI, THAMARAYUR DESOM & POST, POOKKODE VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680505. BY ADV V.M.KRISHNAKUMAR

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RESPONDENTS/RESPONDENTS/PLEAINTIFFS:

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1 SUNDARAN

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AGED 47 YEARS, S/O KANJIRAMPARAMBIL BHARATHAN, PERAKAM VILLAGE, THAMARAYUR DESOM, KOTTAPPADI P.O., CHAVAKKAD TALUK, THRISSUR DISTRICT,

F.A.O.No.109 of 2022

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PIN -680505.

2 GOPI, AGED 75 YEARS S/O. THEKKEKARA KRISHNAN, PERAKAM VILLAGE, KAVEEDU DESOM, KARAYUR.P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680506. [RESPONDENT NO.3 AND APPELLANTS ARE RECORDED AS THE LEGAL HEIRS OF DECEASED RESPONDENT NO.2 AS PER THE ORDER DATED 27/10/2022 IN FAO 109/2022] 3 SENTHILKUMAR, AGED 41 YEARS S/O. THEKKEKARA GOPI, PERAKAM VILLAGE, KAVEEDU DESOM, KARAYUR P.O., CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680506.

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R1 BY ADV SRI.PREMCHAND.M.

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

F.A.O.No.109 of 2022

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JUDGMENT

Shoba Annamma Eapen J.

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This appeal is filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908 against the order in I.A.No.2197/2016 in O.S.No.729 of 2008, which is a petition to condone the delay of 2465 days in filing the petition to set aside the ex parte order.

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The defendants in O.S.No.729 of 2008 on the file of the Additional Sub Court-II, Thrissur are the appellants. They are aggrieved by the order dismissing I.A.No.2197 of 2016 in O.S.No.729 of 2008. The original defendant was one Devaki, the mother of the appellants. She died on 04.06.2016 and her daughters were impleaded as the additional petitioners/defendants and her husband and only son were impleaded as additional respondents/plaintiffs as per order in I.A.No.5191/2016 dated 16.01.2017. The second respondent herein-Gopi died, during the pendency of these appeals and the third respondent and the appellants were recorded as the legal heirs of the second respondent as per order dated

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27.10.2022.

Heard the learned counsel appearing for the appellants and also the learned counsel appearing for the respondents.

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O.S.No.729 of 2008 was filed by the respondentsplaintiffs for specific performance of contract and injunction. The suit was decreed ex parte on 05.08.2009. The appellants came to know about the ex parte decree only on 28.04.2016.

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The appellants had filed I.A.Nos.2194 of 2016 for setting aside the ex parte decree and 2197 of 2016 condoning the delay of 2465 days. The contentions of the appellants are that they came to know about the ex parte decree only on 28.04.2016 when the encumbrance certificate was obtained for availing loan from the Guruvayoor Cooperative Urban Bank, that the plaint schedule property was registered in the name of the first respondent/ Plaintiff on 08.04.2016 and immediately, they enquired about the case

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and came to know that the suit was decreed ex parte on 05.08.2009. The appellants contacted Advocate Jaison

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F.A.O.No.109 of 2022

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Chemmannur about the case and they were told that the entire file was handed over to Senthilkumar- the brother of the appellants. When Devaki, the mother the appellants demanded for the papers, he refused to handover and later, some papers were collected from Senthilkumar through the intervention of the lawyer. On verification of the papers through another lawyer, they came to know that Senthilkumar has forged the signature of Devaki and filed written statement against actual facts. It was further contended that the ex parte decree was obtained by collusion between the first respondent/plaintiff and Senthilkumar and that the lawyer, who was entrusted with the matter, did not conduct the case properly. Hence, the appellants seek to set aside the ex parte decree by condoning the delay in filing the same.

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The respondents resisted the said petition contending that on an earlier occasion, the original defendant was set ex parte and she filed petitions to set aside the ex parte order and the petitions were dismissed for default. Thereafter, the respondents filed petition for depositing the

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F.A.O.No.109 of 2022

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balance sale consideration and also for execution of sale deed through the court and those notices were served by affixture and paper publication. The appellants/ defendants have suppressed all these facts and filed the petitions for setting aside the ex parte order and for condoning the delay in filing the petition. The defendants, after entering appearance, did not contest the case properly and participate in the trial. They were aware of the proceedings and the petition now filed after several years, is to protract the matter and prevent the respondents from enjoying the fruits of the decree. It is further contended that the reason for the delay stated is unjustifiable.

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The court below considered the matter in detail. It was found that after entering appearance in the suit, the defendant did not file any written statement and hence the defendant was declared ex parte on 08.04.2009 and thereafter filed IA Nos.4277/2009 to set aside the ex parte order and I.A.No.4278/2009 to receive the written statement. The petitions were dismissed and the suit was decreed on

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05.08.2009 with costs. The plaintiffs filed petitions for receiving the balance sale consideration and also to execute the sale deed through the process of the court. The notice to the defendant was served through affixture and paper publication. The defendant remained ex parte in those petitions. Finally, the sale deed was executed and registered on 08.04.2016 as Document No .586/2016 of the Sub Registrar Office, Kottapadi. Thereafter, the defendant filed petition to condone the delay of 2465 days for setting aside the ex parte order. The court below, after considering the matter in detail, stated that there was no sufficient reason to set aside the ex parte decree and the petitions were dismissed.

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On verification of the case records, it is seen that the additional third petitioner was examined as PW1. She deposed that her mother died in the year 2014. The present petitions are seen filed in the year 2016 and the court below found that her entire evidence was not sufficient enough to prove the contentions of the petitioners as she had no direct knowledge about the matters transpired from the date of filing

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of the suit to the date of decree. The main reason stated for not contesting the suit was that the Advocate, who was entrusted with case, did not contest the case properly and that their brother Senthilkumar colluded with the plaintiff and the suit was decreed ex parte . It is pertinent to note that other than the mere allegations, no legal proceedings are taken against them and thus they have miserably failed to prove the allegations against Adv.Jaison Chemmannur and Senthilkumar.

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9. The main contentions of the appellants/defendants are that they came to know about the ex parte order only when they got the encumbrance certificate which was applied for availing loan from Guruvayur Co-Operative Urban Bank. The court below found that the certificate was applied and taken only for a period from 01.02.2016 to 27.04.2016 and the said certificate was applied after 20 days subsequent to the registration of the sale deed in favour of the plaintiff and for availing loan, the banks generally insist for 12 years certificate. It was found by the court below that the case of

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F.A.O.No.109 of 2022

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the appellants that they came to know about the execution of the sale deed and the passing of the ex parte decree only on 28.04.2016 is unbelievable and further found that the material on record clearly demonstrates that false and concocted statements are made on behalf of the appellants while seeking condonation of delay.

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10. We have perused the records in the suit. The findings of the learned Sub Judge in the impugned orders are based on the actual facts. Therefore, there is no reason to interfere with the said findings in law or on facts. Suffice to say that the prayer for condonation of inordinate delay of 2465 days in filing the petition to set aside the ex parte order can only be declined in the above circumstances.

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We, therefore, hold that the impugned order does not suffer from any infirmity or illegality. We accordingly dismiss the appeal. However, it is made clear that before effecting delivery in execution proceedings, the parties shall

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be given proper service of notice and the matter shall be

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referred for mediation by the executing court.

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SD/-

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A.MUHAMED MUSTAQUE, JUDGE

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SD/-

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SHOBA ANNAMMA EAPEN,

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MBS/ JUDGE

Vijayalakshmi v. Sundaran

Case brief

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Vijayalakshmi v. Sundaran

Case brief

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