ANTONY JOSEPH Vs. MOHANACHANDRAN NAIR

JUDGEMENT

(1.) THE court below has by the orders impugned refused to set aside the ex parte decree in a suit for realization of money. The defendant was set exparte on 26.03.2010 and he filed I.A No.241/2010 under Order IX Rule 7 of Code of Civil Procedure to set aside the exparte order. The said application was posted to 09.04.2010 when neither the defendant nor his counsel were present. The suit was accordingly decreed exparte on 09.04.2010.

(2.) THE defendants thereafter filed I.A.No.1970/10 to set aside the exparte decree under Order IX Rule 13 of the Code of Civil Procedure. This was supported by I.A.1971/2010 filed under Section 5 of the Limitation Act. There was only a delay of one day in the defendant seeking to set aside the exparte decree. Nevertheless the court below took a hyper technical view and dismissed both the applications by a common order dated 17.06.2010.

(3.) THE fact that the defendant was away at Chennai during the relevant time cannot altogether be brushed aside. The laches on the part of the defendant can be condoned by putting him on terms. I therefore set aside the exparte decree in O.S.No.765/2008 on the file of the court of the Principal Subordinate Judge of Kollam. This is subject to the condition that the petitioner/defendant pays a sum of Rs.15,000/- as costs to the counsel for the respondent in this original petition. The costs shall be paid within a period of 3 weeks form today, failing which the order impugned will remain intact.