Dismissed

George v.George v. the Federal Bank Ltd.

Kerala HC3 Aug 2022FAO/28/2020

Case brief

AI extract

What is this about?

Defendant-appellant sought condonation of delay to set aside a decree. Court held that since plaintiff's evidence was recorded and the case was disposed on merits under Order XVII Rule 2, the decree was not ex parte under Order IX Rule 11, making the application non-maintainable. Appeal dismissed.

What did the court decide?

Appeal dismissed; the order dismissing I.A.Nos. 540 and 541 of 2019 was held to be legally sustainable.

George v.George Vs the Federal Bank Ltd. — Execution and Attachment | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

¶4

¶5

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

¶6

WEDNESDAY, THE 3^RD DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 F.A.O.NO. 28 OF 2020

¶7

AGAINST THE COMMON ORDER DATED 06.02.2020 IN I.A.NOS.540 AND

¶8

541 OF 2019 IN O.S.NO.89 OF 2012 OF THE SUB COURT, PALA APPELLANT/PETITIONER/DEFENDANT:

¶9

GEORGE V.GEORGE

¶10

AGED 51 YEARS, S/O. GEORGE, VARAKUKALAYIL HOUSE, POONJAR THEKKEKARA P.O., POONJAR THEKKEKKARA.

¶11

BY ADV RAJEEV V.KURUP

¶12

RESPONDENT/RESPONDENT/PLAINTIFF:

¶13

THE FEDERAL BANK LTD TEEKOY BRANCH, TEEKOY P.O. KOTTAYAM - 686 582, REPRESENTED BY ITS BRANCH MANAGER.

¶14

BY ADVS.

¶15

SRI.MOHAN JACOB GEORGE

¶16

SMT.P.V.PARVATHY SMT.REENA THOMAS SMT.NIGI GEORGE

¶17

THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL

¶18

HEARING ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

F.A.O.No.28 of 2020

JUDGMENT

Ajithkumar, J.

This is an appeal filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908.

¶24

The defendant in O.S.No.89 of 2012 on the file of the Sub Court, Pala is the appellant. He is aggrieved by the order dismissing I.A.Nos.540 of 2019 and 541 of 2019 in O.S.No.89 of 2012.

¶25

On 18.02.2020, this appeal was admitted to file and notice was directed to be served on the respondent. Execution of the decree in O.S.No.89 of 2012 was stayed for a period of one month initially. The said order was extended from time to time.

¶26

Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondent.

¶27

O.S.No.89 of 2012 was filed by the respondentplaintiff seeking realisation of Rs.9,12,038/-. The suit was taken up for trial on 02.07.2013. On that date, PW1 was

¶28

¶29

F.A.O.No.28 of 2020

¶30

examined on the side of the respondent. The trial was adjourned to 06.07.2013 and on that day, two more witnesses were examined on the side of the respondent. The learned counsel then appearing for the petitioner was seen submitted that the petitioner did not propose to adduce any evidence. The suit was eventually decreed on 12.07.2013.

¶31

The appellant has filed I.A.Nos.540 and 541 of 2019 for getting the said decree set aside, after condoning the delay of 2179 days. The contention of the appellant was that although he participated the trial while recording evidence on the side of the respondent, he could not appear thereafter, and therefore, the decree is an exparte one for all practical purposes. However, on a wrong legal understanding, he filed I.A.No.1742 of 2013 seeking review of the decree. But that application was dismissed on 09.07.2014. The petitioner filed O.P.(C) No.3093 of 2014 challenging the said order before this Court. The petitioner had withdrawn the Original Petition on 30.07.2019 and thereafter filed I.A.Nos.540 and 541 of 2019. Since he had been bonafide pursuing the Review Petition, and

¶32

¶33

F.A.O.No.28 of 2020

¶34

an Original Petition before this Court, such a delay has occurred. The petitioner accordingly contended that by virtue of Section 14 of the Limitation Act, 1963, and also for his inability to file a proper petition to set aside the exparte decree in time, the delay had occurred, which is liable to be condoned.

¶35

The respondent resisted the said petitions by filing

¶36

a statement of objection. The respondent contended that the petitions are not maintainable for the reason that the decree

¶37

is not an exparte one, but it was passed on merits. The reason for the delay stated is also said to be unjustifiable.

¶38

The court below considered the matter in detail. It was found that on 06.07.2013, the learned counsel appearing for the petitioner submitted before the court that the petitioner did not have any oral evidence, whereby the case was adjourned to 09.07.2013 for hearing oral arguments of the parties and it was thereafter the suit was decreed on 12.07.2013.

¶39

Order XVII, Rule 1 of the Code enables the court if

¶40

sufficient cause is shown at any stage of the suit, to grant

¶41

¶42

F.A.O.No.28 of 2020

¶43

time to any of the parties and adjourn the hearing of the suit. While doing so, the court is expected to record its reasons for the adjournment. Rule 2 lays down the procedure to be followed if a party failed to appear on the date to which

¶44

hearing of the suit is adjourned. It reads,

¶45

“2. Procedure if parties fail to appear on day fixed.Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

¶46

Explanation.- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.”

¶47

10. The Explanation makes it clear that where evidence

¶48

or even a substantial portion of the evidence of a party is already recorded, notwithstanding his failure to appear in court thereafter, the court may in its discretion proceed with the case as if such party were present. Rule 3 of Order XVII says that where any party to whom time has been granted,

¶49

¶50

F.A.O.No.28 of 2020

¶51

failed to produce his evidence, the court may, notwithstanding his failure to produce evidence, proceed as provided in Rule 2.

¶52

11. In this case, appellant, through his counsel participated in the trial, and on 06.07.2013, submitted that he had no oral evidence to be let in. Thereby the trial except for the oral hearing of the parties was completed on that day. It was after such a process, that a decree was passed by the court below on 12.07.2013. It was after considering the entire evidence on record. In the said circumstances, it cannot be said that the decree is one passed under Order IX, Rule 11 of the Code. Only if the decree is one passed under Rule 11 of Order IX, the defendant can invoke the provisions of Rule 13 of Order IX of the Code. The decree dated 12.07.2013 in O.S.No.89 of 2012 is, on the other hand, a decree passed on merits in terms of Order XVII, Rule 2 of the Code, and therefore, I.A.No.540 of 2019 is not maintainable.

¶53

12. We have perused the records in the suit. The findings of the learned Sub Judge in the impugned order are

¶54

¶55

F.A.O.No.28 of 2020

¶56

based on the actual facts. There is, therefore, no reason to interfere with the said findings in law or on facts. Suffice it to say that the prayer for condonation of delay can only be declined in the above circumstances. We, therefore, hold that

¶57

the impugned order does not suffer from any infirmity or illegality. We accordingly dismiss the appeal.

¶58

Sd/-

¶59

ANIL K. NARENDRAN, JUDGE

¶60

Sd/-

¶61

P.G. AJITHKUMAR, JUDGE

¶62

dkr

George v.George v. the Federal Bank Ltd.

Case brief

What is this about?

What did the court decide?

George v.George v. the Federal Bank Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Suo Motu Vs the Travancore Devaswom Board

The Travancore Devaswom Board Vs the Deputy Directoe

Jathavedan Namboothiri Vs Cochin Devaswom Board

Dr.Sheela Nayanar Vs M.M.Baby

Vadakkekandiyil Kunhabdulla Haji, Vs Munees

Muthari Sajida Vs Cadiricanakka Pillandakath Zareena