ANTONY Vs. OUSEPH

JUDGEMENT

(1.) Respondents in A.S.No.109 of 2008 of the court of learned District Judge, Thrissur is the petitioner before me challenging Ext.P6, order on I.A.No.995 of 2008 condoning the delay of 439 days in preferring that appeal. The appeal is directed against ex parte judgment and decree in O.S.No.747 of 2005 of the court of learned Munsiff, Thrissur. Petitioner has a decree for specific performance of the agreement for sale of property in his favour. The suit was decided ex parte in favour of petitioner on 27-01- 2007. That was followed by petitioner filing I.A.No.5283 of 2007 to execute the sale deed. On that application respondents appeared and learned Munsiff directed execution of the sale deed. Learned counsel states that the sale deed has already been engrossed on the stamp paper. While so, respondents filed I.A.No.109 of 2008 with I.ANo.995 of 2008 to condone the delay. That application was allowed on cost which is under challenge. Petitioner also has a case that learned District Judge has gone into the merit of the suit itself and the order reveals that the appeal itself is going to be allowed. The further argument is that petitioner was not given opportunity to address arguments in the appeal. So far as challenge to Ext.P6, order is concerned it is seen that learned District Judge has taken into account plea of respondents that while the matter was pending in the court of learned Munsiff there was some sort of mediation talk between the parties and they were under the impression that petitioner would not pursue the suit. That resulted in the delay. Learned District Judge has accepted the explanation and given opportunity to the respondents to contest the matter. Having regard to the circumstances, I do not find reason to interfere with the discretionary jurisdiction exercised by the learned District Judge.

(2.) Observation in Ext.P6, order that respondent must be given an opportunity to contest the matter does not in my view mean that learned District Judge has decided to allow the appeal and permitted respondents to contest the suit. Whether the appeal will be allowed or not is a different matter. The observation only meant that delay has to be condoned and respondents must be given an opportunity to prefer the appeal.

(3.) So far as grievance of petitioner that he was not given an opportunity to hear the appeal is concerned, I am inclined to direct learned District Judge to give petitioners an opportunity to address arguments in the appeal. Learned counsel says that the appeal is posted for judgment on 30-10-2010. Resultantly this petition is dismissed but learned District Judge, Thrissur is directed to give petitioner an opportunity to address arguments in the appeal before the appeal is disposed of on merit.