MUHAMED ASHRAF Vs. MAZEETH
LAWS(KER)-2003-7-17
HIGH COURT OF KERALA
Decided on July 16,2003

Muhamed Ashraf Appellant
VERSUS
Mazeeth Respondents

JUDGEMENT

Shri M. Ramachandran, J. - (1.) The defendants in O.S. 74 of 2001 on the file of Subordinate Judge, Nedumangad are the revision petitioners. This Civil Revision Petition is filed against an order passed by the learned Sub Judge dismissing an application filed under Section 5 of the Limitation Act for condoning the delay in filing a petition under Order 9 Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree.
(2.) The short facts necessary for the disposal of the Civil Revision Petition are as follows: The respondent filed a suit for realisation of Rupees Twelve Lakhs allegedly due to him under an agreement. The revision petitioners entered appearance, but they were absent on the date on which the case was posted for trial. So, on 8.4.2002 the suit was decreed ex parte. The revision petitioners filed I.A. 50 of 2003 under Order 9 Rule 13 for setting aside the ex parte decree after the period of limitation and I.A. 51 of 2003 under Section 5 of the Limitation Act for condoning the delay in filing the petition to set aside the ex parte decree. In the affidavit filed in support of the petition for condonation of delay, it was averred that on receipt of the summons they entrusted the Vakalath with Advocate Mr. V. Shaji of Attingal, who promised to appear and conduct the case for them. It was also averred that a written statement was prepared and the first revision petitioner signed the same and send it to the Advocate for filing the same in the Court. Thereafter they did not hear anything from the Advocate. While so, they received notice from the Sub Court, Irinjalakuda in the Execution Petition filed by the respondent-plaintiff in the suit. They made enquiries and came to know that an ex parte decree was passed on 8.4.2002 and thereafter the decree was transferred to the Sub Court, Irinjalakuda for execution and the decree holder sought the sale of the properties. It is averred that on getting notice of the execution petition, they met Advocate Shri V. Shaji, who informed them that though initially an ex parte decree was passed, the same was set aside on a petition filed by him for that purpose. It is further averred that they requested Advocate Shri Shaji to provide them with a copy of the order, but he did not handover a copy of them. It is further averred that on 17.1.2003 the first revision petitioner sent a telegram and on the next day a letter requesting the Advocate to send them the copy of the order. The Advocate did not sent any reply. So, they met him personally. At that time the Advocate told them that he had already sent a copy of the order to the revision petitioners through post. Therefore the revision petitioners engaged another Advocate and made enquiries in the Sub Court and came to know that no such petition was filed and ex parte decree was not set aside. Hence, they prayed for condoning the delay in filing the petition to set aside the ex parte decree. They also filed I.A. 50 of 2003 for setting aside the ex parte decree supported by an affidavit containing the very same averments.
(3.) The respondent did not file any counter affidavit or statement. An objection signed by the counsel appearing for the respondent was filed, contending that the prayer in the petition is not a bona fide one and the averments contained in the affidavit are false. It was contended that the reasons stated in the affidavit filed in support of the petition for condoning the delay are not sufficient. It was contended that the allegations levelled against Advocate Shri Shaji were baseless and not sufficient. It was contended that there were lathes on the part of the revision petitioners and all along they were in touch with Shri Shaji, who was appearing for them in three criminal cases. It was averred that the petitioners appeared before the Sub Court, Irinjalakuda on 8.11.2002 and filed their objection on 2.12.2002 and they appeared in the Court before the receipt of notice. It was contended that the fact itself shows that the revision petitioner were aware of the entire proceedings. The averment that they have no knowledge about the passing of the ex parte decree is false. It was also contended that the petitioner is filed with mala fide intention to delay the execution of the decree passed. Hence, they prayed for dismissal of both the application.;


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