Kerala High Court
Sreekumar R Menon vs Kalluvalappil Chandreika on 28 March, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:26573
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947
FAO NO. 24 OF 2025
AGAINST THE ORDER DATED 30.10.2024 IN OS NO.8 OF 2016 OF
SUB COURT, QUILANDY
APPELLANT/PETITIONER/DEFENDANT:
SREEKUMAR R MENON
AGED 56 YEARS
S/O RAJAN MENON, PUNDAREDEVI, VNRA 44, VIVEKANANDA
NAGAR, ELAMAKKARA, COCHIN, PIN - 680026
BY ADVS.
C.R.SANISH
ARJUN SASI
KARTHIK S. ACHARYA
ANJANA K.P.
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 KALLUVALAPPIL CHANDREIKA
W/O MANIKARAMBATH SATHYAN, SOUPARNIKA HOUSE,
BALUSSERY P O, KOYILANDY, KOZHIKODE, PIN - 673612
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F.A.O. No.24 of 2025
-: 2 :-
2 MANIKARAMBATH SATHYAN (DIED)
AGED 62 YEARS, S/O GOPALAN NAIR, SOUPARNIKA
HOUSE, BALUSSERY P O, KOYILANDY, KOZHIKODE.
PIN - 673612
3 SAJNA
AGED 35 YEARS, SOUPARNIKA HOUSE, BALUSSERY PO,
KOYILANDY, KOZHIKODE, PIN - 673612
4 SAJITHA
AGED 33 YEARS, SOUPARNIKA HOUSE, BALUSSERY P
O, KOYILANDY, KOZHIKODESOUPARNIKA HOUSE,
BALUSSERY P O, KOYILANDY, KOZHIKODE,
PIN - 673612
5 SARATH
SOUPARNIKA HOUSE, BALUSSERY P O, KOYILANDY,
KOZHIKODE,PIN-673612.
IT IS RECORDED THAT 2ND RESPONDENT IS NO MORE
AND RESPONDENTS 1,3,4 AND 5 ARE THE LEGAL
REPRESENTATIVES OF THE 2ND RESPONDENT.
BY ADVS.
V.V.SURENDRAN
P.A.HARISH(K/000392/1991)
DONA PAUL(K/001661/2018)
SHILPA K.(K/1843/2023)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
HEARING ON 28.03.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
F.A.O. No.24 of 2025
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Dated this the 28th day of March, 2025
JUDGMENT
Sathish Ninan, J.
The applications seeking to set aside the ex parte
decree, on condoning the delay of 1613 days, were
dismissed by the trial court. The petitioner-defendant
is in appeal.
2. The suit for money was decreed ex parte on
20.06.2018. In execution of the decree, the property was
sold on 15.09.2022. On the said date, the petitioner
filed the present applications to set aside the ex
parte decree on condonation of delay. According to the
petitioner, he came to know about the ex parte decree
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only when the notice under Rule 66 of Order XXI of CPC
was affixed at the residence. The counsel, who was given
vakkalath, expired. The present applications are filed
through another counsel, it was contended. The trial
court dismissed the applications.
3. We have heard the learned counsel on either
side.
4. The petitioner had originally participated in
the trial of the suit. After the cross examination of
PW2, the petitioner filed an application to decide on
the territorial jurisdiction of the court, and another
application to recall PW1. Both the applications were
dismissed by the trial court. Challenging the same, the
petitioner approached this Court in O.P.(C) No.226 of
2018 and O.P.(C) No.227 of 2018. The original petitions
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were dismissed as not pressed, on 12.03.2018.
Thereafter, the defendants remained ex parte in the
suit. The suit was decreed ex parte on 20.06.2018.
5. In the execution petition, notice under Rule
22 of Order 21 CPC was served on the petitioner-judgment
debtor. However, he did not choose to appear. He was
absent and was set ex parte on 05.10.2019. Thereafter
the Court ordered issuance of Rule 66 notice and posted
the case on 26.10.2019. On the said date, the
petitioner-judgment debtor entered appearance.
Thereafter, due to Covid-19 pandemic, the case was being
adjourned. On 29.01.2022, the court ordered fresh Rule
66 notice to parties. The petitioner-judgment debtor
remained ex parte. It is thereafter that the sale was
held.
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6. The petitioner-judgment debtor filed
applications as E.A. No.1242 of 2022, E.A. No.1243 of
2022 and E.A. No.1246 of 2022 under Section 47 CPC and
also to set aside the order in the execution setting him
ex parte. On 12.01.2023, all the applications were
dismissed for default. Thereafter, the sale was
confirmed on 12.01.2023.
7. There is no explanation for the petitioner for
having not appeared in the suit after getting the
original petitions filed before this Court dismissed as
not pressed on 12.03.2018. He was served with notice
under Order XXI Rule 22 CPC but he did not care to
appear. Though he was served with notice under Rule 66
and he entered appearance in execution proceedings on
24.10.2019, he did not choose to prefer application to
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set aside the ex parte decree. The applications filed by
him in the execution proceedings, to set aside the ex
parte order in execution, was dismissed for default. The
entire conduct of the petitioner as above demonstrates
his callousness and lack of interest in defending the
proceedings.
8. The learned counsel appearing for the
appellant made a fervent plea that the Court may, as
last chance, grant an opportunity to the petitioner to
contest the suit and invite a decision on merits.
9. It is trite that every endeavour shall be made
by the Court to have a lis decided on merits rather than
a disposal on default. As noticed above, the conduct of
the petitioner is far from unsatisfactory. The suit is
of the year 2016. The decree is for realisation of
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approximately Rs.1.18 crores with 9% interest from the
date of suit. Considering the entire facts, we are of
the opinion that one last opportunity can be granted to
the petitioner-defendant to have his contentions in the
suit decided on merits but, on securing the interests of
the plaintiff-respondent also. We feel that the
petitioner-defendant could be called upon to furnish
security for the decree debt and compensate the
respondent with costs.
Resultantly, the appeal is allowed and the ex parte
decree is set aside on condoning the delay, subject to
the condition that the appellant furnishes security for
the decree debt, inclusive of interest and costs, to the
satisfaction of the trial court, on or before 30.05.2025
and pays an amount of Rs.20,000/- as costs to the
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counsel appearing for the respondent-plaintiff before
this Court within that date. In case of failure to
comply with the conditions as above, the appeal will
stand dismissed affirming the impugned order.
Post on 02.06.2025 to verify compliance.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
yd
