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Kerala High Court
Pradeep Kumar vs Shaji on 13 February, 2026
Author: Sathish Ninan
Bench: Sathish Ninan
2026:KER:13415
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 13TH DAY OF FEBRUARY 2026 / 24TH MAGHA, 1947
FAO NO. 87 OF 2025
AGAINST THE ORDER DATED 02.06.2025 IN IA 3/2021 IN OS
NO.245 OF 2007 OF ADDITIONAL SUB COURT, IRINJALAKUDA
APPELLANT/PETITIONER/2ND DEFENDANT:
PRADEEP KUMAR
AGED 63 YEARS, S/O THEKKOOTU THAMBI RAJAN,
RESIDING AT THEKKOOTU HOUSE, PERUMPADAPPU DESOM,
CHENTRAPPINNI VILLAGE, CHENTRAPPINNI P O,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN - 680687
BY ADV SHRI.G.SREEKUMAR (CHELUR)
RESPONDENTS/RESPONDENTS/PLAINTIFF, 1ST DEFENDANT AND
DEFENDANTS 3 TO 6:
1 SHAJI,
AGED 59 YEARS, S/O THEKKOOTU THAMBI RAJAN,
RESIDING AT THEKKOOTU HOUSE, PERUMPADAPPU DESOM,
CHENTRAPPINNI VILLAGE, CHENTRAPPINNI P O,
KODUNGALLUR TALUK, NOW RESIDING AT CHAVAKKAD
DESOM, MUTHUVATTOOR VILLAGE, CHAVAKKAD TALUK,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SYAL,
AGED 56, S/O CHERIYAPADATH BHASKARAN, KOOLIMUTTAM
VILLAGE, KOOLIMUTTAM P O, KODUNGALLUR TALUK,
THRISSUR DISTRICT, PIN - 680691
2026:KER:13415
F.A.O.No.87 of 2025
-: 2 :-
2 MOHANDAS
AGED 65 YEARS, S/O THEKKOOTU THAMBI RAJAN,
RESIDING AT THEKKOOTU HOUSE, PERUMPADAPPU
DESOM, CHENTRAPPINNI VILLAGE, CHENTRAPPINNI P
O, KODUNGALLUR TALUK, THRISSUR DISTRICT,
PIN - 680687
3 SUKUMARAN,
AGED 69 YEARS, S/O THEKKOOTU THAMBI RAJAN,
RESIDING AT THEKKOOTU HOUSE, PERUMPADAPPU
DESOM, CHENTRAPPINNI VILLAGE, CHENTRAPPINNI P
O, KODUNGALLUR TALUK, THRISSUR DISTRICT,
PIN - 680687
4 BEENA
AGED 59 YEARS, D/O THEKKOOTU THAMBI RAJAN AND
W/O ERASSERY MANOMOHAN, PANANGAD DESOM,
SREENARAYANAPURAM VILLAGE, S N PURAM P O,
KODUNGALLUR TALUK, THRISSUR DISTRICT,
PIN - 680665
5 SHEEJA
AGED 59 YEARS, D/O THEKKOOTU THAMBI RAJAN AND
W/O RAMANUNNI, RESIDING AT NJATTUVETTY HOUSE,
KURUMBILAVU DESOM, KURIMBILAVU VILLAGE,
KURUMBILAVU P O, THRISSUR TALUK, THRISSUR
DISTRICT, PIN - 680564
6 SREELATHA
AGED 47 YEARS, D/O S/O THEKKOOTU THAMBI RAJAN
AND W/O MADATHINKAL UNNIKRISHNAN, MADAVANA
DESOM, ERIYAD VILLAGE, ERIYAD P O, KODUNGALLUR
TALUK, THRISSUR DISTRICT,, PIN - 680666
7 SHEELA
AGED 45 YEARS, S/O THEKKOOTU THAMBI RAJAN AND
W/O RAJESH, RESIDING AT THINDIPARAMBIL HOUSE,
PERUMPADAPPU DESOM, CHENTRAPPINNI VILLAGE,
CHENTRAPPINNI P O, KODUNGALLUR TALUK, THRISSUR
2026:KER:13415
F.A.O.No.87 of 2025
-: 3 :-
DISTRICT,, PIN - 680687
8 PRAVEEN
AGED 37 YEARS
S/O THEKKOOTU SUKUMARAN, RESIDING AT THEKKOOTU
HOUSE, PERUMPADAPPU DESOM, CHENTRAPPINNI
VILLAGE, CHENTRAPPINNI P O, KODUNGALLUR TALUK,
THRISSUR DISTRICT,, PIN - 680687
BY ADVS.
SRI.AJITH VISWANATHAN
SRI.P.K.SAJEEV
SHRI.SHIBU JOSEPH
SHRI. SAYED MANSOOR BAFAKHY THANGAL
SMT.VRINDA BABU
SHRI.SARATH VISWANATHAN
SRI.D.VIMAL DEV
SMT.JISSA ANN CHERIAN
SHRI.KEVIN JOSE SHIBU
SHRI.M.SRIRAM
SRI.P.VISWANATHAN (SR.)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
HEARING ON 13.02.2026, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
F.A.O. No.87 of 2025
= = = = = = = = = = = = = = = = = =
Dated this the 13th day of February, 2026
JUDGMENT
Sathish Ninan, J.
Applications to set aside the ex parte decree on
condonation of delay, were dismissed by the trial court. The
petitioner, who is the 2nd defendant in the suit, is in
appeal.
2. The suit is one for partition. Ex parte decree was
passed against the petitioner-2nd defendant on 30.09.2010.
The application to set aside the ex parte decree was filed
on 20.11.2021, i.e., after more than 11 years after the
decree. According to the petitioner, he was unaware of the
suit and the decree. He came to know about the decree only
on 21.07.2021. The plaintiff in the suit had executed Ext.B1
Gift Deed in his favour on 27.04.2020. Therein, since a
reference was seen made to the suit, he contacted a lawyer.
2026:KER:13415
Due to Covid-19 pandemic there occurred delay in obtaining
and verifying the records. It was only on 21.07.2021, that
he came to know that he was the 2 nd defendant in the suit and
the suit was set ex parte. Thereafter, he was afflicted with
an eye disease and from 10.08.2021 onwards, he was under the
treatment of Ophthalmologist, who advised three months rest.
It is thereafter that the applications have been filed.
Since the summons and notices in the suit were not
personally served, the applications have been filed on
getting knowledge of the ex parte decree. From the date of
knowledge, the delay is stated to be only 121 days.
3. On the side of the petitioner, PW1 and PW2 were
examined and Exts.A1 to A5 were marked. On the side of the
respondent, RW1 to RW4 were examined and Exts.B1 to B3 were
marked. Exts.X1 to X5 are summoned documents and were marked
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as court exhibits. The trial court found that the
petitioner's plea lacks bonafides and that the explanation
offered by him is not correct. Accordingly, the applications
were dismissed.
4. We have heard the learned counsel on either side.
5. It is not in dispute that the summons and notices
in the suit were served on the petitioner by substituted
service. So what would be relevant is the knowledge of the
decree. According to the petitioner, he was residing at
Mumbai for 21 years from 1998. Ext.A1 Bank passbook and
Ext.A2 insurance policy are relied on by him to substantiate
his claim that he was at Mumbai. However, the entries in
Ext.A1 passbook is only up to 28.10.2009. So also Ext.A2 is
dated 05.03.2001. Ext.X1 is the Employees Provident Fund
Certificate dated 21.05.2011, Ext.X2 is the provident fund
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challan, Ext.X3 is the petitioner's bio-data, Ext.X4 series
is the contribution history of Employees State Insurance
Corporation, and Ext.X5 series is the member details of
petitioner with M/s.Fire and Safety Investigation Pvt.Ltd.
All these evidence that the petitioner was employed therein
as security guard from 01.04.2011 to 11.08.2019. RW3 is the
Managing Director of the said institution. The above prove
that the petitioner's claim that he was away at Mumabi for
21 years from 1998, is not correct. Exts.A1 and A2 relied
upon by the petitioner do not prove that he was at Mumbai
atleast since October, 2009. He admittedly has a good
relationship with his sisters, who are residing at the
station. Therefore, Exts.A1 and A2 could not come to the aid
of the petitioner.
6. Ext.B1 is a Gift Deed executed by the plaintiff,
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who is the brother of the petitioner in his favour. Ext.B1
is dated 27.04.2020. In Ext.B1, the donor has referred to
the decree in the suit as his title. The final decree was
passed on 29.06.2013. The petitioner accepted the gift and
has been paying tax as admitted by him. So also, admittedly,
he has constructed a house in the said property. Therefore,
the contention that he was not aware of the decree in the
suit, is incorrect.
7. The petitioner would claim that he had gone
through the contents of Ext.B1 only three months after its
execution. Even if that be so, he came to know about the
Gift Deed as early as in July, 2020. The claim of the
petitioner that he came to know about the decree only on
21.07.2021, is apparently incorrect. Though it is claimed
that the lawyer wanted further documents to be obtained and
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it is only on receipt of the same that the petitioner came
to know about the ex parte decree, is unbelievable in the
light of the fact that the title referred to in Ext.B1 Gift
Deed is the very decree.
8. There is yet another way of looking at the issue.
The petitioner admittedly accepted Ext.B1 Gift Deed and has
constructed a building therein. He has deposed that he
accepts Ext.B1. The title referred to in Ext.B1 is the
decree in question. If he is accepting Ext.B1 Gift, then he
is estopped from challenging the decree in the suit, which
is the title of the donor.
9. Though the petitioner claims that he was under the
treatment for an eye infection, in his cross-examination, he
would depose that his illness was only a dryness of the eye
and that he had went to the doctor riding on a scooter for
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which he did not have any difficulty. Evidently, the reason
stated lacks bonafides.
10. The entire circumstances noticed above are
sufficient enough to find that the claim of the petitioner
that he came to know about the ex parte decree only on
21.07.2021 and the explanation attempted to be offered for
the delay are incorrect and lack bonafides. The trial court
was justified in having dismissed the applications.
There is no merit in the appeal. The appeal fails and
is dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
