Against The Order/Judgment In Os ... vs By Adv. Sri.Varghese C.Kuriakose
2021 Latest Caselaw 11347 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                       OP(C).No.232 OF 2021

  AGAINST THE ORDER/JUDGMENT IN OS 115/2014 OF II ADDITIONAL SUB
                         COURT,ERNAKULAM


PETITIONER/RESPONDENT/PLAINTIFF IN I.A. NO.3619/2019 & 1.A.
NO.3620/2019 IN O.S.NO/115/2014 ON THE FILES OF IIND ADDL.SUB
COURT, ERNAKULAM :

             ALEYAMMA JOHN
             AGED 73 YEARS
             W/O LATE JOHN EBENEZAR, HOUSE NO 7/562,
             PRIMROSE, THRIKKAKKARA, KOCHI-682 021,
             RESIDING AT KARIATH LARON VILLA,
             KALARIKKAL GARDENS, NADAKKAVU P.O.UDAYAMPEROOR,
             MANAKKUNNAM VILLAGE, KANAYANNUR TALUK,
             ERNAKULAM, PIN-682 307.

             BY ADV. SRI.VARGHESE C.KURIAKOSE

RESPONDENT/PETITIONER/DEFENDANT IN I.A.3619/2019 & 3620/2019 IN
O.S.NO.115/2014 ON THE FILES OF SUBORDINATE JUDGE'S COURT,
ERNAKULAM:

             PREETHY MATHEW
             AGED 47 YERAS
             D/O A.S.MATHEW, APPAKKOTTUMURIYIL HOUSE,
             THURUTHIKKADU P.O.MALLAPPALLY,
             PATHANAMTHITTA DISTRICT-689 597

             R1 BY ADV. SRI.G.SREEKUMAR (CHELUR)

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2021,     THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.232 OF 2021

                                   2


                             JUDGMENT

Dated this the 8th day of April 2021

The plaintiff in a suit for recovery of money challenges the

orders condoning the delay in filing the petition to set aside the ex

parte decree as well as the order setting aside the ex parte

decree.

2. The limited contention raised by the learned counsel for

the petitioner Sri.Varghese C. Kuriakose is that while condoning

the long delay of 1528 days by Ext.P7 order, the court below failed

to impose costs by not appreciating the length of the delay, the

age of the plaintiff as well as the difficulty in identifying any

specific property to proceed in execution of the possible decree as

available with the defendant. He submitted that delay ought to

have been condoned only by imposing adequate costs.

3. As far as the last limb of the above recorded submission

is concerned, I am of the view that the impugned order itself takes

care of the same, since it directs the defendant, as a condition for

condoning the delay, to furnish cash security or deposit a fixed

deposit receipt for Rs.34 lakhs towards the decree amount or to

furnish as security any immovable property in the name of the OP(C).No.232 OF 2021

defendant, equivalent to the value of the amount of decree, that is

sought to be set aside. Advocate Sri.G.Sreekumar (chelur), the

learned counsel for the respondent submitted that the defendant is

willing to abide by the aforesaid condition and has taken all

earnest steps to furnish the title deeds relating to the immovable

property and the same would be furnished before the Sub Court,

Ernakulam within a short period from today and the counsel seeks

a breathing time for such deposit.

4. As regards the cost to be imposed considering the age

of the plaintiff and the delay, I am of the opinion that the learned

counsel for the petitioner is justified in his submissions that the

costs ought to have been imposed for condoning such a long

delay. Even though the court has found that there was sufficient

cause in condoning the delay, no proper reasons have been

specified. In the aforesaid circumstances, I am of the opinion that

costs ought to have been imposed while condoning the delay.

5. Taking into reckoning the long delay in the case and

considering the age of the plaintiff, I am of the view that an

amount of Rs.20,000/- ought to have been imposed as costs for

condoning this long delay. Accordingly, the respondent herein who

is the defendant in O.S.No.115/2014 on the files of the II OP(C).No.232 OF 2021

Additional Sub Court, Ernakulam shall pay to the plaintiff in the

suit, an amount of Rs.20,000/- as costs within two months from

today as a condition for condoning the delay. I also direct that the

time granted in Ext.P7 to furnish the security shall stand extended

by a period of two months from today.

6. Having regard to the circumstances in the case, I am

also of the view that the Sub Court shall take effective steps to

dispose of the suit itself as expeditiously as possible, at any rate

before 31.03.2022.

The Original petition is allowed in part as above.

Sd/-

BECHU KURIAN THOMAS JUDGE SCS OP(C).No.232 OF 2021

APPENDIX OF OP(C) 232/2021 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE PLAINT IN OS NO 115/2014 ON THE FILE OF 11NDD ADDL SUB COURT ERNAKULAM DATED 28.4.2014

EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT/DEFENDANT IN OS NO 115/2014 ON THE FILE OF 11ND ADDL SUB COURT, ERNAKULAM DATED 1.8.2014

EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE IA NO 3619/2019 IN OS NO 115/2014 ON THE FILES OF 11ND ADDL SUBORDINATE JUDGES COURT, ERNAKULAM DATED 11.11.2019

EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE IA NO 3620/2019 IN OS NO 115/2014 ON THE FILES 11ND ADDL. SUBORDINATE JUDGES COURT, ERNAKULAM DATED 11.11.2019

EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN IA NO 3619/2019 IN OS NO 115/2014 ON THE FILES OF 11ND ADDL. SUBORDINATE JUDGES COURT, ERNAKULAM DATED 25.9.2020

EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN IA NO 3620/2019 IN OS NO 115/2014 ON THE FILES OF 11ND ADDL SUBORDINATE JUDGES, COURT ERNAKULAM DATED 25.9.2020

EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE ORDER IN IA NO 3620/2019 IN OS NO 115/2014 ON THE FILES OF 11ND ADDL SUBORDINATE JUDGES COURT, ERNAKULAM DATED 30.11.2020

EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE ORDER IN IA NO 3619/2019 IN OS NO 115/2014 OF 11ND ADDL SUBORDINATE JUDGES COURT, ERNAKULAM DATED 30.11.2020