The High Court dismissed first appeals filed by appellants against orders upholding ex-parte decrees and rejecting condonation of delay. The court found that registered summons were properly addressed and returned, indicating no merit in setting aside the decrees.
Appeals dismissed; ex-parte decrees upheld; delay not condoned.
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 A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 8TH DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944
FAO NO. 132 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 06.02.2017 IN I.A.
NO.955/14 & I.A.NO.956/14 IN OS 57/2002 OF SUB
COURT,KATTAPPANA
APPELLANTS/DEFENDANTS 7 TO 9:
D/O A S RANGASWAMI, AND W/O B BALASUBRAMANIYAN, NO.1,S R AYYAR LAYOUT,RAMANATHAPURAM, COIMBATORE.
BY ADVS.
SRI.S.SACHITHANANDA PAI SMT.O.K.SANTHA
RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 TO 6 AND 10 TO 12:
F.A.O. No.132 of 2017 & F.A.O. No..126 of 2017
2
CHENNAMKARYKARA,KAINAKARY VILLAGE, KUTTANADU TALUK,ALAPUZHA(DT)-688501.
9 P.SASIKALA D/O.A S RANGASWAMI,PANKAJAM HIOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK, THENI DISTRICT-626513.
BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SRI.SETHURAM DHARMAPALAN SMT.BHANU THILAK SRI.M.D.SASIKUMAR FOR R1
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08.11.2022, ALONG WITH FAO NO.126/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
F.A.O. No.132 of 2017 & F.A.O. No..126 of 2017
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 8TH DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944
FAO NO. 126 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 06.02.2017 IN I.A.NO.550/2014 AND 551/2014 IN OS 57/2002 OF SUB
COURT,KATTAPPANA
APPELLANT(PETITIONER IN I.A.NO.550 AND 551/14 4TH DEFENDANT IN THE SUIT:
MEENA @ MALLIKA AGED 58 YEARS, W/O. PANDIAN, DOOR NO. 22/132,COLLEGE ROAD, UDUMALPETTAIKARA,THIRUPUR,TAMILNADU.
BY ADV SRI.S.SACHITHANANDA PAI
RESPONDENTS:
1 KUNCHERIA ALEXANDER @ KUNJAPPAN S/O. CHANDY, CHERUKODE HOUSE, CHENNAMKARYKARA, KAINAKARY VILLAGE, KUTTANADU TALUK, ALAPPUZHA - 679 533.
F.A.O. No.132 of 2017 & F.A.O. No..126 of 2017
4
S/O. KURIAKOSE, VADAKKUMCHERRY HOUSE, VADAKKUMBHAGAM KARA, MANJAPPARA VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT – 683 101 11 JOSEPH AGED 63 YEARS, S/O. CHANDY, CHERUKODE HOUSE, RUBY NAGAR, VAZHAPPALLY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM- 686 001. BY ADVS. SRI.M.D.SASIKUMAR SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SRI.SETHURAM DHARMAPALAN SMT.BHANU THILAK FOR R1
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08.11.2022, ALONG WITH FAO NO.132/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
F.A.O. No.132 of 2017 & F.A.O. No..126 of 2017
5
J U D G M E N T
Dated this the 8th day of November, 2022
A. Muhamed Mustaque, J
These appeals are filed by the defendant nos. 4, 7 to 9 in a suit for specific performance filed in the year 2002 on the file of Sub Court, Kattappana. They were set ex-parte. The application to set aside ex-parte decree were filed in the year 2014 along with application to condone the delay have been dismissed. The delay of 1629 days involved is the subject in F.A.O. No.126/2017 and in other appeal delay involved was 1756 days. The Court below noted that there is no sufficient cause to condone the delay.
F.A.O. No.132 of 2017 & F.A.O. No..126 of 2017
6
defendant was the nephew of the 1st respondent/plaintiff. He also set aside ex-parte. Thereupon, he filed an application to set aside the ex-parte order, that was dismissed. He took up the matter on appeal in C.M.A.No.66/2017 on the file of the District Court, Thodupuzha that was allowed on payment of cost. Plaintiff came before this Court challenging that order allowing the application to set aside ex-party order in a petition filed under Article 227 of the Constitution of India. This Court confirmed the order of the District Court and further opined that setting aside the ex-parte decree would be available only to benefit of 10th defendant and not to other defendants who were also set ex-parte.
3 . The execution petition was laid in the year 2010. Thereafter, delivery was ordered against all the judgment debtors. The appellant in F.A.O. No.126/2017 aggrieved by the order of the delivery approached this Court in O.P.No.958/2014 challenging the order of delivery. This Court set aside order of delivery and directed the execution Court to hear the appellant
F.A.O. No.132 of 2017 & F.A.O. No..126 of 2017
7
in F.A.O. No.126/2017. Thereafter, she also filed an application
to set aside the ex-parte decree with delay. The other
defendants 7 to 9 also filed an application to set aside the ex-
party with delay.
4 . Heard, counsel for both sides. We called for a report
from the learned sub court as to service of notice, the learned
Sub Court furnished details of the service in this matter.
Details of service of Summons through Court
| Rank No. of the defendants |
Name of the defendants |
Details on the service of summons returned |
Date of service |
|---|---|---|---|
| D1 | Jayalakshmi | Affixed | 28/06/02 |
| D2 | A.S.R.. Alagukumar |
Personally served | -Do- |
| D3 | A.S.R. Subbaiah | Affixed | -Do- |
| D4 | P. Mallika | Not residing in the address |
Unserved |
| D5 | V. Chandrika | Not residing in the address |
Unserved |
| D6 | P. Sasikala | Not residing in the address |
Unserved |
| D7 | B. Alagusavithri | Not residing in the address |
Unserved |
F.A.O. No.132 of 2017 & F.A.O. No..126 of 2017
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| D9 | M. Sheela | Not residing in the | Unserved |
|---|---|---|---|
| address |
Details of service of Summons through Registered Post
| Rank No. of the defendants |
Name of the defendants |
Details on the service of summons returned |
Date of service |
|---|---|---|---|
| D4 | P. Mallika | Returned to sender | Unserved |
| D5 | V. Chandrika | Returned to sender | Unserved |
| D6 | P. Sasikala | Signature affixed on the acnowledgment card |
03/06/03 |
| D7 | B. Alagusavithri | Returned to sender | Unserved |
| D8 | G. Pankajam | Registered cover or acknowledgment card was not returned |
Registered cover or A/D not returned |
| D9 | M. Sheela | Signature affixed on the acknowledgment card |
03/06/03 |
5 . As seen from the above tabular column, summons
were not served on appellants. However, registered notice is
seen to have been addressed in proper address and returned with postal intimation given.
6 . Question is whether this Court should set aside the
ex-parte decree passed in the matter.
F.A.O. No.132 of 2017 & F.A.O. No..126 of 2017
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7 . We perused the records. It is to be noted that service
was taken by registered post on address where the appellants
were residing. The endorsement is seen in all registered post that the intimation was given. The explanation of the appellant is that, after marriage they have shifted from the house. It is to be noted that siblings were served with the notice in the same
address. The appellants have no case that this is not an address belong to them.
In such circumstances we are of the view that there is no merit in this appeal. Hence the appeal stands dismissed. Registry shall return the records forthwith.
Sd/-
A.MUHAMED MUSTAQUE JUDGE
Sd/-
SHOBA ANNAMMA EAPEN JUDGE
ams
3 issues framed by the court
Whether the High Court should set aside the ex-parte decree in view of unsuccessful postal service of summons.
Did the trial court exercise discretion to condone the delay in filing applications to set aside the ex-parte decree?
Whether the appellants were resident at the addresses where the registered summons were sent.
Meena @ Mallika
Pankajam
Sheela
Alex T
Chandrika
Sasikala
A. Muhamed Mustaque
Shoba Annamma Eapen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
