P. Bhaskaran vs K. Unnikrishnan

K.M. Joseph, J.—Appellant challenges the common order passed in I.A. Nos. 1476/10 1477/10 dated 24.11.2011 in O.S. No. 153/07 on the file of the Sub Court, Payyannur. The said Applications were filed for condonation of the delay and also for setting aside the ex party decree under Order IX Rule 13 CPC. The Applications were dismissed finding, inter alia, that the appellant has no case that he was not aware of the date on which the case was posted for trial and adjournment ought to have been sought. No instructions was seen to have been submitted on behalf of the appellant. The very same counsel who reported no instructions, was seen to have filed the present petitions also. It is also found that the appellant travelled till Taliparamba during the time when he was alleged to be laid up and that, therefore, it shows that he was not completely bed-ridden as alleged. He also did not state the date on which he was aware of the decree. Therefore, the case of the appellant for condonation of delay of 179 days in filing the Application and for non-appearance, was found to be not sustainable. Learned counsel for the appellant submits that Ext. A1 medical certificate was produced. We feel that an opportunity should be given to the appellant to establish his contentions.

In such circumstances, we allow the Appeal and the Applications will stand allowed and the ex parte decree shall stand set aside. The parties will appear before the court below on 09.8.2012 and the court below will dispose of the Suit finally within three months from 09.8.2012.