M.P. Abraham v. Leelamma Menon and E.I. Jayakumar

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN MONDAY, THE 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934 ## **CRP.No. 427 of 2010 C** AGAINST THE ORDER DATED 24.6.2010 IN I.A.NO.1760 OF 2009 IN OS.NO.1/2007 OF SUB COURT, PALA REVISION PETITIONER/RESPONDENT/PLAINTIFF: ------------------------------------------------------ M.P.ABRAHAM, MATTATHIL HOUSE, VANDANPATHAL KARA, ERUMELI NORTH, KANJIRAPPALLY, KOTTAYAM. BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.S.MANU RESPONDENTS/PETITIONER & 2ND RESPONDENT/DEFENDANTS: ----------------------------------------------------- 1. LEELAMMA MENON, PAREKKATTU MOOLAYIL, KIZHUTHANI, KARALAM VILLAGE, MUKUNDAPURAM NOW RESIDING AT NO.101, LILY, KESAR GARDEN SECTOR 20, KHARGHAR, NAVI MUMBAI. 2. E.I.JAYAKUMAR, PAREKKATTU MOOLAYIL, KIZHUTHANI, KARALAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. R1 BY ADV. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-04-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.2063/2010 IN C.R.P.NO.427/2010** DISMISSED 2/4//2012 SD/- **K.T.SANKARAN, JUDGE** //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------C.R.P. NO. 427 OF 2010 C -----------------------------------------------------Dated this the 2[nd] day of April, 2012** ## **O R D E R** The plaintiff in O.S.No.1 of 2007 on the file of the Court of the Subordinate Judge of Pala, challenges the order dated 24.6.2010 in I.A.No.1760 of 2009, by which the court below allowed the application filed by the first defendant under Rule 13 of Order IX of the Code of Civil Procedure and set aside the exparte decree passed against her alone. 2. The petitioner/plaintiff filed the suit against the defendants for realization of a sum of `14,77,750/-. According to the plaintiff, when the defendants borrowed the amount, they executed an agreement to repay the same. The defendants filed separate written statements denying the transaction and denying execution of the document. The first defendant is the mother of the second defendant. 3. On 16.6.2008 the court below passed an exparte decree C.R.P. NO.427 OF 2010 :: 2 :: against the defendants. The second defendant (son of the first defendant) filed I.A.No.1137 of 2008 to set aside the exparte decree. As per the order dated 31.10.2008, the court below allowed that application and set aside the exparte decree. The court below did not specify as to whether the exparte decree against the first defendant also was set aside. The suit was listed for trial. On 7.10.2009, the second defendant was set exparte and an exparte decree was passed. I.A.No.1760 of 2009 was filed by the first defendant to set aside the exparte decree passed against her on 7.10.2009. The court below allowed that application by the order dated 24.6.2010, which is under challenge in this Revision. 4. In the order impugned, the court below specified that the exparte decree only against the first defendant was set aside. The learned counsel for the petitioner, relying on the decisions in **Hiralal Morarka** v. **Sitaram Manekchand** (AIR 1952 Bombay 446), **Vasant Jaiwantrao Mahajan** v. **Tukaram Mahadaji Patil** (AIR 1960 Bombay 485), **Shiva** v. **Fertilizer & Chemicals Travancore Ltd. And Others** (2009 (4) KHC 879), **Nanu** v. **Joseph** (2002 (1) KLT 151) and **Bank of India** v **. Mehta Brothers** ((2008) 13 SCC 466), C.R.P. NO.427 OF 2010 :: 3 :: contended that when the Court passes an order setting aside the exparte decree on the application of one of the defendants, the exparte decree only as against the person applying could be set aside. It is also submitted that when the court does not specify that the first proviso to Rule 13 of Order IX of the Code of Civil Procedure is invoked to set aside the exparte decree against all the defendants, it could be taken that the decree is set aside only in so far as it relates to that person who applied for setting aside the exparte decree. The counsel submitted that it cannot be presumed that the court set aside the exparte decree not only as against the person who applied for setting aside, but as against the other defendants as well. It is also submitted that by a subsequent order, the court cannot interpret the earlier order, so long as it is not specified in the earlier order that the decree was set aside against the other defendants also. If the case of the petitioner is accepted, the necessary consequence would be that an exparte decree was passed against the first defendant only on 16.6.2008 and there could never be an exparte decree against her on 7.10.2009. It is true that only the first defendant applied for setting aside the exparte decree dated 7.10.2009. If she was set exparte on 16.6.2008 and a decree was passed against her on that date, so long as it is not specified C.R.P. NO.427 OF 2010 :: 4 :: that the exparte decree was set aside in her favour also on the application made by the second defendant, it cannot be said that on 7.10.2009 another exparte decree could be passed against the first defendant. If so, it could only be treated that her application relates to application to set aside the exparte decree dated 16.6.2008. Of course, there will be a delay in filing the application. The question is whether in the facts and circumstances of the case, the delay is to be condoned and the application to set aside the exparte decree should be allowed. ## 5. The first defendant is the mother of the second defendant. She is an aged woman. She was residing with her daughter at Kolkata for quite some time when the suit was pending. Later, she came to Kerala and underwent a major surgery at Amritha Hospital. She says that, at that time she came to know of the exparte decree and she made the application. The first defendant says that at present she is residing with her daughter in Mumbai. According to the first defendant, she is not in good terms with her son, the second defendant. The whereabouts of her son is not known to her. She has denied the execution of any document in favour of the plaintiff. She has denied the receipt of money. No decree on the merits was C.R.P. NO.427 OF 2010 :: 5 :: passed against her. The plaintiff cannot contend that the exparte decree passed in his favour should continue and that the dispute cannot be decided on the merits. There could be no vested right to get an exparte decree. The question is whether in the facts and circumstances of the case, the explanation offered by the first defendant is liable to be accepted and the exparte decree against her is to be set aside. 6. In the peculiar facts and circumstances of the case, I am of the view that the first defendant should be given an opportunity to contest the case on the merits, particularly taking into account that a huge sum of money was claimed from her in the suit. However, I do not think that the first defendant should be allowed to get the exparte decree set aside without any terms. The inconvenience caused to the plaintiff can be compensated in terms of money. I am of the view that the exparte decree can be set aside on condition of payment of `5,000/- to the plaintiff as costs. In the result, the Civil Revision Petition is allowed in part and the order passed by the court below is modified as follows: ## C.R.P. NO.427 OF 2010 :: 6 :: - a) The exparte decree dated 16.6.2008 passed against the first defendant alone is set aside on condition that the first defendant shall pay a sum of `5,000/- as costs to the plaintiff; - b) The costs shall be paid on or before 30.6.2012; - c) On the failure of the first defendant to pay the costs as aforesaid, the application to set aside the exparte decree shall be treated as dismissed. **(K.T.SANKARAN) Judge** ahz/