IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930
CRP.No. 1225 of 2005()
---------------------AGAINST THE ORDER DATED 16/08/2005 IN IA NO.1673/2005 IN OS.649/2003 of PRL.MUNSIFF COURT,NEYYATTINKARA
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REVN. PETITIONER: (COUNTER PETITIONER/PLAINTIFF)
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MADHU PILLA VIKRAMAN NAIR, KALAYIVILA PUTHEN VEEDU, ARAYOOR P.O., ARAYOOR DESOM, CHENKAL VILLAGE.
BY ADV. SRI.G.S.REGHUNATH
RESPONDENTS: PETITIONERS/DEFENDANTS
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1. NARAYANI AMMA SATHYABHAMA, THEKKEPUTHEN VEEDU, ALOTTUKONAM, AMARAVILA P.O., NATTAVOORKOLLA DESOM, KOLLAYIL VILLAGE.
2. OMANA AMMA, D/O. SATHYABHAMA, DO. DO.
3. JAYAKUMARI, D/O. SATHYABHAMA, DO. DO.
BY ADV. SRI.R.T.PRADEEP FOR R1 TO R3
SRI.V.VIJULAL FOR R1 TO R3
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRP NO.1225/05
ORDER ON I.A.NO.3503 OF 2005 IN C.R.P.NO.1225 OF 2005
## DISMISSED
23.5.2008
SD/- M.SASIDHARAN NAMBIAR
## **M.SASIDHARAN NAMBIAR, J.**
----------------------------------C.R.P.No.1225 of 2005 ----------------------------------Dated this the 23[rd] day of May, 2008
## ORDER
The petitioner is the plaintiff in O.S.No.649/03. That suit was filed for specific performance of an agreement for sale. Respondents are the defendants. That suit was admittedly decreed ex-parte on 16.10.2003. Petitioner filed E.P.No.599/03 for execution of the decree. Notice in the execution petition was served on the second respondent/defendant on 12.1.2004 and on third respondent on 10.3.2004. Subsequently, registered sale deed was executed through court in favour of the petitioner. Petitioner then moved the executing court for delivering of the property. Delivery was ordered on 18.12.2004. Notice in that petition was served on the second respondent on 16.10.2004. Respondents subsequently filed I.A.No.1672/05, an application under Section 5 of Limitation Act to condone the delay and I.A.No.1673/05 an application under Rule 13 of Order IX of Code of Civil Procedure to set aside the ex-parte decree on 6.7.2005. According to the respondents, they did not receive any summons
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in the suit and were unaware of the decree. It was alleged that they came to know about the decree only on receipt of notice of the execution petition and thereafter, they met petitioner/decree holder who promised to withdraw the suit on payment of the entire amount received by the respondents to the petitioner and later when the respondents approached the petitioner with the money, he refused to receive the same and therefore, petitions were filed. It was contended that the delay was not willful and was for reasonable cause and therefore, the delay is to be condoned and the ex-parte decree is to be set aside. Petitioner filed objections denying the allegations raised by them and contended that there is no reasonable cause to condone the delay or to set aside the ex-parte decree before the trial court. Second petitioner was examined as PW1 and Ext.A1, the marriage invitation letter of PW1, was marked on the side of the respondents. Exts.B1 to B3 notices served on the respondent in the execution petition were marked. Learned Munsiff as per order dated 16.8.2005 allowed the applications on payment of cost of Rs.3,000/-. The order is challenged in this revision.
2. The learned counsel appearing for the petitioner
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relied on the decisions of the Apex Court in **Ramachandran vs. State of Kerala (1997(2) KLT 647 SC)** and **Balakrishnan vs. Mohammed Basheer (1999(3) KLT SN 68 Case No.69)** and argued that there is absolutely no satisfactory explanations for the inordinate delay in filing the petition after at least getting notice in the execution petition. It was argued that there is no basis of believing the case of the respondents that they approached petitioner or that petitioner promised to withdraw the case and that too after the decree was passed. It was pointed out that receipt of notice in the execution petition on 12.1.2004 was admitted by the petitioner and in the writ petition No.11372/05 filed by the second respondent before this Court it was contended that on 27.9.2004, petitioner assaulted husband of the second respondent after trespassing into her house and he subsequently died on 12.12.2004 and in such circumstances, the story that the petitioners/respondents approached the petitioner and believing the promise of the petitioner to withdraw the case did not take steps to set aside the decree cannot be believed and the impugned order passed by the learned Munsiff is not
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sustainable.
3. Learned Counsel appearing for the respondents submitted that by the impugned order trial court had only granted an opportunity to contest the suit and even that was done by directing a payment of cost of Rs.3,000/- and in the interest of justice, the order may not be interfere. The learned counsel argued that the agreement was not in fact an agreement for sale and respondents were compelled to execute the same to raise funds for the treatment of the son of the second respondent who had to undergo a coronary surgery and all the respondents are ladies and because of the actions of the petitioner, husband of the second respondent, a retired defence personnel committed suicide and in such circumstances, revision petition is only to be dismissed. The learned counsel also argued that respondents willfully failed to appear before the court or file a petition within the prescribed period and in such circumstances, the discretion exercised by the trial court may not be interfered.
4. Learned counsel also argued that there is no evidence to prove that summons was served on the defendants in the suit as found by the trial court and in such circumstances, in the
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interest of justice, only an opportunity was granted to the respondents so as to have a decision on merits and in such circumstances, the revision is only to be dismissed.
5. The ex-parte decree in the suit was passed on 16.10.2003. The petition under Rule 13 of Order XI of Code of Civil Procedure is to be filed within 30 days from the date of the decree or if summons was not served on the defendants, within 30 days from the date of knowledge of the decree even if it is taken that summons in the suit were not served and respondents were not aware of the pendency of the suit, they cannot be heard to contend that they were unaware of the decree after receipt of the notice in the execution petition. Notice on execution petition was received on 12.1.2004. Therefore, in any case of application under Rule 13 of Order IX should have been filed within 30 days from 12.1.2004. The petition was filed only on 29.3.2005. The question is whether there is sufficient explanation for the delay.
6. The trial court condoned the delay accepting the version of PW1 that she approached the decree holder who promised to settle the matter and therefore, later it did not materialise and so there is sufficient cause to condone the delay.
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7. When a decree was passed ex-parte and the decree was executed and a registered sale deed was executed through court it is not possible to believe the interested version of PW1 that respondents approached the petitioner and he promised to receive the amount due and withdraw the case. There cannot be a withdrawal of the case once the decree is passed unless the decree is set aside or an appeal filed. Even if it is believed that petitioners approached the decree holder subsequent to the receipt of notice in the execution petition received by them, it could only be in January 2004 as it was served on second respondent as admitted by her on 12.1.2004. As rightly pointed out by the learned counsel appearing for the petitioner notice on third respondent was served only on 10.3.2004. If that be so, notice on the third respondent was received only in March, it cannot be believed that respondents were under the belief that the matter will be settled by the petitioner. Even if that version is believed, according to the allegation in the writ petition filed by the second respondent before this Court, petitioner trespassed into the house of the respondents on 27.9.2004 and assaulted the husband of the second respondent and took away
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the fridge. He subsequently died in December, 2004. If after a promise to settle the dispute and withdraw the case as contended by the respondents, petitioner assaulted the husband of second respondent after tress passing into the house and carried away the fridge from the house it cannot be believed for a moment that respondents at least thereafter believed the decree holder and did not file a petition to set aside the ex-parte decree. In any case the failure to apply from then onwards cannot be for the alleged promise made by petitioner. If the story unveiled is true, at least in October 2004, these petitions would have been filed. There is absolutely no explanation for the delay at least from 27.9.2004 till 29.3.2005 when the petitions were filed.
8. Moreover, it is admitted case that respondents appeared in the executing court and filed an objection on 22.1.2005. If that be so, at least on 22.1.2005 these petitions should have been filed. Unfortunately, these relevant and material aspects were not considered by the learned Munsiff while taking an undeserved liberal view and that too without recording sufficient cause for the inordinate delay. As held by
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the Apex Court, the liberal approach to be taken while considering the application under Section 5 of the Limitation Act does not mean that what ever is stated by the party is to be followed. When the admitted and established facts prove that the explanation of the respondents is not true, trial court was not justified in setting aside the ex-parte decree after condoning the inordinate delay. In such circumstances, the revision is allowed. The common order passed in I.A.No.1672/05 and 1673/05 in O.S.No.649/03 by Munsiff, Neyyattinkara is set aside. Both the petitions stand dismissed.
## **M.SASIDHARAN NAMBIAR, Judge**
