Kerala High Court
Susha.S vs Brijith Daniel on 24 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:45503
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
FAO NO. 64 OF 2025
AGAINST THE ORDER DATED 13.02.2025 IN I.A.NO.52 OF 2024 IN
OS NO.40 OF 2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
ATTINGAL
APPELLANT/DEFENDANT/JUDGMENT DEBTOR:
SUSHA.S, AGED 65 YEARS, D/O SUKUMARAN, PRASANNA
BHAVAN, CHENNANCODE, VADASSERIKONAM P.O. OTTOOR
VILLAGE, THIRUVANANTHAPURAM, PIN - 695143
BY ADVS. SMT. AISWARYA V.S.
SRI.AKHIL SUSEENDRAN
RESPONDENT/PLAINTIFF/DECREE HOLDER:
BRIJITH DANIEL, AGED 55 YEARS, D/O JAMES, SAJAN
DALE, KUNNUMMELCHERI, MARUTHADI P.O, KOLLAM,
PIN - 691003
BY ADVS.
SRI.M.R.RAJESH
SMT.SANDHYA E.S.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON
24.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
F.A.O. No.64 of 2025
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Dated this the 24th day of June, 2025
JUDGMENT
Sathish Ninan, J.
The defendant in a suit for money is the appellant. He
challenges the order refusing to restore a restoration
application, which was dismissed for default.
2. We have heard the learned counsel on either side.
3. The suit is one for recovery of money under a
cheque. The suit was filed on 05.10.2016. Since the
defendant remained ex parte, an ex parte decree was passed
on 30.11.2018.
4. With a delay of 1398 days, the defendant-appellant
herein, filed applications as I.A.No.138 of 2022 under Order
IX Rule 13 of Code of Civil Procedure, seeking to set aside
the ex parte decree and I.A.No.137 of 2022 to condone the
delay.
5. I.A.No.137 of 2022 and I.A.No.138 of 2022 were
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dismissed for default since there was no representation for
the petitioner.
6. Thereafter, the defendant filed I.A.No.87 of 2023
to restore I.A.No.137 of 2022 and I.A.No.138 of 2022. The
said application was also dismissed for default on
09.01.2024, since there was no representation on his behalf.
7. This was followed by I.A.No.52 of 2024, seeking to
restore the restoration application (I.A.No.87 of 2023). As
per the impugned order, the trial court dismissed the
application.
8. The reason stated for the absence on 09.01.2024 is
that, the restoration application, namely, I.A.No.87 of
2023, and the execution petition, which is pending for
execution of the decree (E.P.No.38 of 2019), were being
posted together consequent to which the posting of I.A.No.87
of 2023 was not separately noted by the clerk in his office
diary. The posting of the I.A on 09.01.2024 was not noticed.
Thus, the failure to represent when the matter was called
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for, was not willful.
9. The suit is of the year 2016 and is for recovery
of money. The ex parte decree was passed in the year 2018.
Applications were being filed one after the other without
prosecuting the same. The proceedings as above reveal the
callous and negligent manner in which the appellant was
prosecuting the matter. It tells upon the bonafides of the
appellant. As noticed by the trial court, the posting
details are available in the eCourts site and the
explanation offered by the appellant cannot be accepted. We
are in agreement with the trial court in having dismissed
the application.
Resultantly, the appeal fails and is dismissed. No
costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
2025:KER:45503
PETITIONER ANNEXURES
Annexure A1 . THE TRUE COPY OF THE PLAINT IN OS
NO.40/2016 BEFORE THE SUB COURT,
ATTINGAL
Annexure A2 THE TRUE COPY OF THE EXPARTE DECREE
DATED 30.11.2018 PASSED BY THE SUB
COURT, ATTINGAL IN OS NO.40/2016
Annexure A3 THE TRUE COPY OF PETITION TO SET ASIDE
EXPARTE DECREE IA NO.138/2022 IN OS
NO.40/2016 BEFORE THE SUB COURT,
ATTINGAL
Annexure A4 THE TRUE COPY OF IA NO. 137/2022 IN OS
NO.40/2016 BEFORE THE SUB COURT,
ATTINGAL
Annexure A5 THE TRUE COPY OF THE ORDER IN IA NO.
138/2022 IN OS NO 40/2016 OF THE SUB
COURT, ATTINGAL DATED 30.05.2023
Annexure A6 THE TRUE COPY OF THE ORDER IN IA NO.
137/2022 IN E.P. 38/2019 IN OS NO
40/2016 OF THE SUB COURT, ATTINGAL DATED
30.05.2023
Annexure A7 THE TRUE COPY OF THE MEDICAL RECORD
ISSUED BY RAY MAYO CLINIC, ATTINGAL,
DATED 30.05.202
Annexure A8 A TRUE COPY OF EP NO.38/2019 FILED
BEFORE THE SUB COURT, ATTINGAL DATED
06.07.2019
Annexure A9 A TRUE COPY OF EA NO.175/2022 IN E.P.
38/2019 BEFORE THE SUB COURT, ATTINGAL
DATED 22/9/2022
Annexure A10 . A TRUE COPY OF THE ORDER IN EA
NO.175/2022 IN E.P. 38/2019 IN O.S. NO.
40/2016 PASSED BY THE SUB COURT,
ATTINGAL DATED 16.08.2023
Annexure A11 THE TRUE COPY OF THE JUDGMENT DATED
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05.04.2024 IN OP(C) NO.2190/2023 PASSED
BY THE HONOURABLE HIGH COURT OF KERALA
Annexure A12 THE TRUE COPY OF IA NO.87/2023 IN OS
NO.40/2016 BEFORE THE SUB COURT,
ATTINGAL
Annexure A13 TRUE COPY OF THE ORDER DATED 09.01.2024
PASSED BY SUB COURT, ATTINGAL
Annexure A14 TRUE COPY OF IA NO.52/2024 IN OS
NO.40/2016 DATED 05.03.2024 BEFORE THE
SUB COURT, ATTINGAL
Annexure A15 CERTIFIED COPYOF THE ORDER DATED
13.02.2025 I.A. 52/2024 PASSED BY THE
SUB-COURT ATTINGAL IN I.A. 38/2019 IN
O.S. NO. 40/2016 BEFORE THE FILES OF
SUB-COURT ATTINGAL
Annexure A16 THE TRUE COPY OF THE ORDER IN OS NO.
75/2015 OF SUB COURT, ATTINGAL DATED
29.11.2024
Annexure A17 THE TRUE COPY OF THE JUDGMENT IN ST
NO.3137/2015 OF JFCMC-1, VARKALA DATED
03.10.2023
Annexure A18 THE TRUE COPY OF THE PETITION PREFERRED
TO DGP DATED 13.06.2025
