This Single Judge Bench dismissed an appeal against the common order dismissing applications to set aside an ex parte decree and condone delay. The court noted no evidence existed for non-appearance during the relevant period and admitted property had already been sold and proceeds adjusted.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 7TH DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944
FAO NO. 75 OF 2020
[AGAINST THE COMMON ORDER DTD.4.1.2020 IN I.A.NOS.1630/2019 & 1631/2019 IN OS 81/2017 OF I ADDITIONAL SUB COURT, KOZHIKODE]
APPELLANTS/PETITIONERS/DEFENDANTS 1 AND 2:
1 ALI AGED 57 YEARS S/O KUNHAMMED. 2 SHEREEFA, AGED 47 YEARS W/O.ALI,BOTH RESIDING AT MADHUKOODUYATHIL, POONOOR.P.O,KADAVOOR VILLAGE, THAMARASSERY TALUK, KOZHIKODE-673574. BY ADVS. SRINATH GIRISH SRI.P.JERIL BABU
RESPONDENT/RESPONDENT/PLAINTIFF:
MUHAMMED ALI, AGED 46 YEARS, S/O IBRAHIM,PANOLATH HOUSE, MANIPURAM.P.O,KODUVALLY, THAMARASSERY TALUK, KOZHIKODE-673572. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Shoba Annamma Eapen, J :
Appellants are the petitioners in I.A.Nos.1631/2019 in O.S.No.81/2017 on the file of the First Additional Sub Court, Kozhikode. The petitions were filed seeking for a prayer to set aside the ex parte decree passed against the appellants. The suit is for realisation of a sum of Rs.28.75 lakhs with interest from the appellants. The suit was decreed ex parte on 31.08.2017. Thereafter, the respondent filed execution petition E.P.No.208/2018 before the Execution Court for realisation of the
decree amount. The appellants were set ex parte in the execution petition as well and E.A.No.776/2018 to set aside the ex parte order in the execution petition was dismissed. The appellants herein filed I.A.No.1631/2019 for setting aside the ex-parte decree dated 31.8.2017 along with I.A.No.1630/2019 to condone the delay of 735 days in filing the same. After elaborate consideration of the petitions, the court below dismissed both the I.As. on 4.1.2020. In the present appeal, it is stated that the
F.A.O.No.75 of 2020
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execution petition has been closed by the court below on 18.1.2020 after completing the sale proceedings and it is further stated that the sale price was adjusted towards the decree debt as early as in the year 2020.
the ex parte decree was passed on 31.8.2017 and the entire evidence adduced by the appellants/petitioners to substantiate their non-appearance was in respect of the year 2018-19. No evidence was adduced to prove the non-appearance during the relevant period. There was a delay of 735 days in filing the petition for setting aside the ex parte decree. No satisfactory reason was explained by the appellants/petitioners regarding the inordinate delay in filing the petition. Petitions were filed at the time of sale proceedings in the execution petitions. It is admitted by the counsel for the appellants that the property was sold and the sale price was adjusted towards the decree debt.
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We do not find any reason to interfere with the order
passed by the court below. Hence, the appeal is dismissed. No order as to costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
sd/-
SHOBA ANNAMMA EAPEN,
MBS/ JUDGE
ALI, S/O KUNHAMMED
SHEREEFA, W/O ALI
MUHAMMED ALI, S/O IBRAHIM
A.MUHAMED MUSTAQUE
SHOBA ANNAMMA EAPEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
