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High Court of KeralaFAO/225/2013allowed

Mariamma Antony Fernandes v. K V Vishwan

2015-11-04Honourable Smt. Justice P.V.Asha,Honourable Mr.Justice Antony Dominic4 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 4TH DAY OF NOVEMBER 2015/13TH KARTHIKA, 1937 FAO.No. 225 of 2013 () ----------------------- AGAINST THE ORDER DATED 28.5.2013 IN IA. NO.65/2008 AND IA.NO.66/2008 IN OS 275/2001 of I ADDL.SUB COURT,TRIVANDRUM APPELLANTS/PETITIONERS:

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1. MARIAMMA ANTONY FERNANDES AGED 53 YEARS W/O.LATE ANTONY FERNANDEZ, "MAGGIE VILLA"

HOUSENO.VIII/283, ATTINKUZHI, BEHIND RAILWAY STATION KAZHAKOOTTAM, THIRUVANANTHAPURAM. PIN - 695582.

2. PETER ANTONY FERNANDEZ, S/O.LATE ANTONY FERNANDEZ, AGED 28 YEARS, "MAGGIE VILLA", HOUSE NO.VIII/283 ATTINKUZHI, BEHIND RAILWAY STATION, KAZHAKOOTTAM THIRUVANANTHAPURAM PIN - 695582.

3. TRACY ANTONY FERNANDEZ, D/O.LATE ANTONY FERNANDEZ, AGED 24 YEARS, "MAGGIE VILLA", HOUSE NO.VIII/283, ATTINKUZHI BEHIND RAILWAY STATION, KAZHAKOOTTAM THIRUVANANTHAPURAM PIN - 695582.

4. MAGGIE ANTONY FERNANDEZ, D/O.LATE ANTONY FERNANDEZ, AGED 32 YEARS, "MAGGIE VILLA", HOUSE NO.VIII/283 ATTINKUZHI, BEHIND RAILWAY STATION, KAZHAKOOTTAM THIRUVANANTHAPURAM PIN - 695582.

BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G.

SRI.MANU V.

SRI.GOVIND PADMANAABHAN RESPONDENT/COUNTER PETITIONER:

------------------------------ K V VISHWAN, AGED 45 YEARS S/O.R.P.RAGHAVAN, MAVUNGAL (P.O), ANANDASHRAMAM KANHANGODU, KASARAGODU NOW RESIDING AT SUPER MARKET AL SAHAB, PB NO.5249 DUBAI, U.A.E., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.K.SUKUMARAN, CHENNADUKKAN, BEENANDLY VILLAGE HOSDURG TALUK, KASARAGODU, PIN:671129 R1 BY ADV. SRI.M.SASINDRAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKC

ANTONY DOMINIC & P.V.ASHA, JJ.

Dated this the 4th day of November, 2015

JUDGMENT

Antony Dominic, J.

The appellants are the legal heirs of the deceased defendant in O.S.No.275 of 2001. The said suit was filed by the respondent herein seeking for recovery of money. The defendant did not appear or contest the suit, as a result he was set ex-parte and the suit was decreed on 30.9.2003. Subsequently I.A.Nos.65 and 66 of 2008 were filed by the appellants seeking condonation of delay of 4 years, 1 month and 19 days in applying to set aside the ex-parte decree and to set aside the decree. These IAs were dismissed by the trial court as per the common impugned order. It is this order which is under challenge before us.

2. We heard the learned counsel for the appellant and the learned counsel for the respondent/plaintiff.

3. Having considered the rival submissions made at the Bar, we are inclined to think that the court below has erred in dismissing the IAs. Evidence before the court below shows that

the deceased defendant and his family were residing in Dubai since 1991. During that period, he fell ill due to cancer and after prolonged treatment he expired on 8.6.2007 and was buried in Dubai. It is thereafter that his family consisting of the appellants herein returned to India in July 2007. It is still thereafter that they came to know of the suit, the ex-parte decree and an attachment that was obtained by the respondent/plaintiff on the basis of which E.P.No.117 of 2006 was filed before the execution court. It is accordingly that enquiries were made and after obtaining the certified copies, the IAs were filed seeking condonation of delay and to set aside the ex-parte decree.

4. Though the delay is an inordinate one, from the facts noticed, which are substantiated by the oral evidence of PW-1, the first appellant, we are satisfied that the delay has been properly explained. Even otherwise there is also no reason for us to think that despite service of notice and that too in a case where immovable property of the deceased is involved the appellants or the deceased would have kept away from the court meanwhile a decree against them.

In such circumstances, we allow this appeal by condoning

the delay and setting aside the ex-parte decree as prayed for subject to the appellants paying cost of 10,000/- (Rupees Ten ₹ thousand only) to the respondent. The parties are directed to appear before the First Additional Sub Court, Thiruvananthapuram on 2.12.2015. The court below will thereafter proceed with the suit with due expedition. The cost shall be paid within two weeks from today. Sd/- ANTONY DOMINIC, JUDGE.

Sd/- P.V.ASHA, JUDGE.

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