MOLYKUTTY EAPEN Vs. SEBASTIAN PAILY

JUDGEMENT

(1.) The court below has by the order impugned allowed an application filed to set aside the ex-parte final decree in a suit for partition. The court below has accepted the case of the sole defendant that there was a communication gap after his counsel had shifted her practice to the High Court. The application under Order IX Rule 13 of the Code of Civil Procedure was filed within 30 days from the date of knowledge and the application for condonation of delay filed at the appellate stage was only superfluous. The lower appellate court has taken note of the fact that the Advocate Commissioner conducted local inspection during the day time when the defendant was busy with his tea shop (bunk) near the Police Parade Ground. The court below has exercised its discretion in fixing the costs at Rs. . 8,000/- so as to cover the amount paid by the plaintiffs towards purchase of non-judicial stamp papers.

(2.) Every endeavour should be made to have the lis disposed of on merits rather than allowing a party to obtain a decree by default. I am not inclined to interfere with the order of the court below in setting aside the ex-parte decree for partition after condoning the delay. I however direct the court of the Additional Munsiff of Kottayam to expedite the proceedings in O.S. No. 240 of 2007 on its file and pass a final decree within a period of three months from the date of receipt of a copy of this judgment.