Kerala High Court
John Lobo vs L. Sebastian Babu on 16 September, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
FAO No.99 of 2025
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2025:KER:69019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 16TH DAY OF SEPTEMBER 2025 / 25TH BHADRA, 1947
FAO NO. 99 OF 2025
AGAINST THE ORDER DATED 12.02.2025 IN RP NO.30 OF 2023 OF SUB
COURT,KATTAPPANA ARISING OUT OF THE JUDGMENT DATED 16.11.2023 IN
OS NO.16 OF 2018 OF SUB COURT,KATTAPPANA
APPELLANTS/PETITIONERS/DEFENDANTS
1 JOHN LOBO
AGED 57 YEARS
S/O T.S. JOHN LOBO, THUNDIPPARAMBIL HOUSE, THEKKADY
KARA, KUMILY VILLAGE, PEERMADU TALUK, IDUKKI,
REPRESENTED BY POWER OF ATTORNEY HOLDER ROSHAN LOBO.
AGED 34 YEARS, S/O JOHN LOBO, RESIDING AT
THUNDIPPARAMBIL HOUSE, THEKKADY KARA, KUMILY VILLAGE,
PEERMADU TALUK, IDUKKI DISTRICT, PIN - 685509
2 ROSELIN K. THOMAS
AGED 50 YEARS
W/O JOHN LOBO, THUNDIPPARAMBIL HOUSE, THEKKADY KARA,
KUMILY VILLAGE, PEERMADU TALUK, IDUKKI, REPRESENTED BY
POWER OF ATTORNEY HOLDER ROSHAN LOBO.AGED 34 YEARS, S/O
JOHN LOBO, RESIDING AT THUNDIPPARAMBIL HOUSE, THEKKADY
KARA, KUMILY VILLAGE, PEERMADU TALUK, IDUKKI DISTRICT,
PIN - 685509
BY ADVS.
SMT.CRISTY THERASA SURESH
SRI.V.GIRISHKUMAR
SRI.S.BIJU (KIZHAKKANELA)
SRI.JAISHANKAR V.NAIR
SMT.ARATHI KARUNAKARAN
SHRI.SUVIN.R.MENON
SMT.PARSHATHY S.R.
SHRI.ACHUTH KRISHNAN R.
FAO No.99 of 2025
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RESPONDENT/RESPONDENT/PLAINTIFF:
L. SEBASTIAN BABU
AGED 55 YEARS
S/O C.D. LONAPPEN NO. 61, 4TH CROSS, BALAJI KRUPA
LAYOUT, SINKASANTRA VILLAGE, CHICKBEGUR ROAD,
BANGALORE, PIN - 560068
BY ADVS.
SHRI.ABRAHAM P.GEORGE
SMT.M.SANTHY
SMT.ANNA JEZITA DAVID
SHRI.RISHABH DILRAJ
SHRI.P.SEBASTIAN ABRAHAM
SHRI.VAISHAKH N.M.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
16.09.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO No.99 of 2025
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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F.A.O.No.99 of 2025
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Dated this the 16th day of September, 2025
JUDGMENT
P.Krishna Kumar, J.
The application seeking to set aside an ex parte
decree, was dismissed by the trial court. The applicants-
defendants are in appeal.
2. The suit for money was decreed ex parte on
16.11.2023. Appellants are husband and wife. According to the
appellants, their failure to appear before the court on the
scheduled day was not wilful. Exts.A2 and A3 Medical
Certificate and Discharge Summary together with Exts.X1 and X2
treatment records would show that they were seriously ill and
unable to attend the court. The Medical Officer of Family
Health Centre, Kumily and the doctor who treated the first
appellant were examined as PW2 and PW3 to prove the medical
condition of the first appellant.
3. The application was opposed by the respondent
pointing out that, on an earlier occasion also the suit was
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decreed ex parte and that the application lacks bonafides,
especially when the appellants had got the case removed from
the list on six earlier occasions, alleging their ill-health.
4. The trial court held that the non-appearance was not
bonafide and accordingly, dismissed the application.
5. We have heard the learned counsel on either side.
6. There is no delay in seeking to set aside the ex parte
decree. The suit is filed for realisation of Rs.53.5 lakhs
from the respondent. This is the second occasion on which the
suit was decreed ex parte. This time the suit was listed for
trial on 15.11.2023. There is no dispute that the appellants
had earlier got the case adjourned on several occasions on the
ground of their illness.
7. It is true that the appellants have produced several
medical records and even examined the doctors, who treated
them. However, apart from a prescription slip said to have
been issued on 15.11.2023 from the Family Health Centre,
Kumily, all other medical records were for the period much
prior to the date when the suit was posted for trial
(15.11.2023). Exts.X1 and X2 are dated 13.06.2023 and
17.04.2023 respectively. Exts.A2 and A3 are dated 15.08.2023
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and 28.04.2023 respectively. As noticed above, the previous
conduct of the appellants is also not appreciable. However,
having due regard to the entirety of the circumstances, we are
of the opinion that, as a last chance, one more opportunity
can be granted to the appellants to go for trial and invite a
judgment on merits. We bear in mind that the interest of the
respondent is to be adequately protected.
8. In the result, the appeal is disposed of as
hereunder;
(i) The appellants-defendants shall furnish
sufficient security for the decree amount,
inclusive of interest and cost, before the trial
court, within a period of four weeks from today
(16.09.2025).
(ii) The sufficiency of the security shall be
considered by the trial court.
(iii) Once the trial court orders that
sufficient security has been furnished by the
appellants-defendants, they shall pay an amount
of Rs.25,000/- as costs to the
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respondent/plaintiff, within a period of 7 days
therefrom.
(iv) On the appellants-defendants complying with
the above directions, the appeal will stand
allowed and the ex parte decree will stand set
aside. In such event, the trial court will
expedite the disposal of the suit.
(v) On the failure of the appellants-defendants
to comply with either of the conditions imposed
as above, the appeal will stand dismissed
affirming the impugned order.
Parties to appear before the trial court on 30.09.2025.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
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