Ashok Kumar Kanattu @ Asok Nair vs Manju

C.S Dias,J.

The original petition is filed to direct the Court of the District Judge, Thrissur, to  consider  and  dispose  of  IA No.1/2020 in CMA No.81/2017 within a time frame.

The petitioners' case, in brief, in the original petition  is  that  they  are the appellants  in CMA No.81/2017. The said appeal has been filed challenging the  ex-parte  decree  that has  been passed  against them. The Appellate Court had admitted the appeal and passed Ext P3 order staying all further proceedings pursuant to the impugned decree. The appeal was dismissed for default.  The  petitioners  have  filed  Ext  P4  application, under Order XLI Rule 19 of the Code of Civil Procedure, to readmit  the appeal. During  the pendency  of  the application, the respondents are proceeding with the execution of the decree.  The petitioners  would  be  put  to severe  prejudice  pendency of Ext P4 application. Hence, the Appellate Court may be directed to consider and dispose of Ext P4 within a time frame.

Heard; Sri.G.Sreekumar Chelur, the learned counsel appearing for the petitioners and Smt.Rajeswary.K, the learned counsel appearing for the respondents.

The learned counsel appearing for the respondents submitted that the appeal is of the year 2017 and it was posted on various dates . The petitioners have deliberately, to protract the respondents from realising the fruits of the decree, absented themselves at the time of hearing of the appeal. Accordingly, the appeal was dismissed for default. More than Rs.5,00,000/- is due from the petitioners as per the impugned decree. Hence, the original petition may be dismissed.

Admittedly, the petitioners have preferred Ext P2 appeal before the Appellate Court within the prescribed time period and Ext P3 interim order has been passed staying the execution of the decree. Subsequently, theappeal was dismissed for default. The petitioners have preferred Ext P4 application to readmit the appeal, and the same is pending consideration.

On a consideration of the pleadings and materials on record and hearing the respective Counsel appearing for the parties, I am of the firm view that, to do complete justice to the parties, the Appellate Court is to be directed to consider and dispose of Ext P4 application on its merits and in accordance with law, after affording both sides an opportunity of being heard.

In the result, the original petition is allowed by directing the Court of the District Judge, Thrissur, to consider and dispose of IA 1/2020 in CMA 81/2017, in accordance with law, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of the judgment. Until such time, orders are passed on Ext P4 application, Ext P3 order staying the execution proceeding shall continue to remain in force.

The original petition is ordered accordingly.