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Kerala High Court
Sathyavruthan vs Rosily Varghese on 17 December, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
FAO No.128 of 2025
2025:KER:97094
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 17TH DAY OF DECEMBER 2025 / 26TH AGRAHAYANA, 1947
FAO NO. 128 OF 2025
AGAINST THE ORDER DATED 15.07.2025 IN OS NO.74 OF 2015 OF
ADDITIONAL SUB COURT, IRINJALAKUDA
APPELLANT/DEFENDANT:
SATHYAVRUTHAN, AGED 63 YEARS
S/O KATTOORVEETTIL LELAMMA,
MANAVALASSERY VILLAGE ,
KORUMBISSERY DESOM,
MUKUNDAPURAM TALUK,
THRISSUR., PIN - 680121
BY ADV SRI.P.YADHU KUMAR
RESPONDENTS/RESPONDENTS/PLAINTIFFS
1 ROSILY VARGHESE, AGED 70 YEARS
W/O LATE ETTUMANUKKARAN VARGHESE,
MANAVALASSERY VILLAGE,
CHELOOR DESOM,
MUKUNDAPURAM TALUK,
THRISSUR., PIN - 680102
2 SUBHA RAJU, AGED 47 YEARS
D/O, LATE ETTUMANUKKARAN VARGHESE,
MANAVALASSERY VILLAGE,
CHELOOR DESOM,
MUKUNDAPURAM TALUK, THRISSUR,
REP. BY POA HOLDER SOMAN VARGHESE ,
S/O LATE ETTUMANUKKARAN VARGHESE., PIN - 680102
3 SOMAN VARGHESE, AGED 46 YEARS
FAO No.128 of 2025
2025:KER:97094
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S/O LATE ETTUMANUKKARAN VARGHESE,
MANAVALASSERY VILLAGE,
CHELOOR DESOM,
MUKUNDAPURAM TALUK,
THRISSUR ., PIN - 680102
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
16.12.2025, THE COURT ON 17.12.2025 DELIVERED THE FOLLOWING:
FAO No.128 of 2025
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SATHISH NINAN & P.KRISHNA KUMAR, JJ
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FAO No.128 of 2025
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Dated this the 17th day of December, 2025
JUDGMENT
P.Krishna Kumar.J
The application seeking to set aside an ex parte
decree, was dismissed by the trial court. The
applicant/defendant is in appeal.
2. The suit was one for realisation of money based on
a promissory note. Since the appellant denied the execution
of the promissory note, the respondents-plaintiffs caused
the document to be sent for expert opinion regarding its
genuineness. The expert opinion was obtained on 30.10.2019.
Later, the suit was posted for evidence on 05.07.2021. At
that stage, the appellant contended that the expert had
prepared the opinion in collusion with the respondents and,
therefore, sought to have the promissory note forwarded to
the Forensic Science Laboratory, Thiruvananthapuram, for an
unbiased opinion. He also filed an application to remove the
case from the list until the FSL report was received. The
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court dismissed the application and proceeded with the case.
The defendant remained ex parte. After considering the
plaintiffs evidence, the Court pronounced judgment against
the defendant. It was under these circumstances that the
appellant filed the aforesaid application for setting aside
the ex parte decree. The application was dismissed by the
court holding that the application lacks bonafides.
3. We have heard the learned counsel appearing for
the appellant.
4. According to the appellant, he was under a bona
fide belief that the court would allow his application and,
therefore, there was sufficient cause for allowing the
petition.
5. Upon an evaluation of the facts and circumstances
of the case, we find no apparent error in the impugned
order. The learned Sub Judge has rightly observed that the
appellant had sufficient opportunity to request the court to
forward the promissory note to the Forensic Science
Laboratory well before the case was listed for trial. So
also, when there is already a report before the Court, it
was for the appellant to have adduced evidence against the
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acceptability of the report. It is only if the Court held
that the available report is not acceptable that a second
reference need to have been made. A second report could not
have been called for just for the mere asking. As noted in
the order, the expert submitted the report on 30.10.2019,
whereas the case was posted for evidence only on 05.07.2021.
For the mere fact that his application was dismissed by the
Court he ought not have remained ex parte to scuttle the
further proceeding in the suit. The suit itself was
instituted in the year 2015. The failure on the part of the
appellant to participate in the trial cannot be appreciated.
It is, therefore, evident that the appellant was not acting
bonfide.
6. Faced with this situation, the learned counsel
appearing for the appellant made a fervent plea that the
appellant be afforded an opportunity to contest the case on
the merits, even if subject to stringent conditions. In the
circumstances, though we notice that the conduct of the
appellant is not appreciable, we are of the opinion that, as
a last chance, one more opportunity can be granted to the
appellant to face trial and invite a judgment on the merits.
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We are also mindful that the interests of the respondents
must be adequately protected, while we take such an
approach.
In the result, the appeal is disposed of as hereunder;
(i) The appellant-defendant shall furnish bank guarantee
for the decree amount, inclusive of interest and cost,
before the trial court, within a period of six weeks from
today.
(ii) Once the Bank Guarantee is furnished by the
appellant, the ex parte decree will stand set aside.
(iii) On the failure of the appellant-defendant to comply
with the condition imposed as above, the appeal will
stand dismissed affirming the impugned order.
Parties to appear before the trial court on
19.01.2026.
Sd/-
SATHISH NINAN,JUDGE
Sd/-
P.KRISHNA KUMAR,JUDGE
dlk/16/12/
