OMANA MATHAI Vs. K. JOSEPH EASO

JUDGEMENT

(1.) This appeal is against an ex parte decree for specific performance of a contract for sale of immovable property.

(2.) Appellant had filed an application to set aside the ex parte decree. That was decided against her. She, therefore, filed an appeal to this Court against the order refusing to set aside the ex parte decree. That appeal was allowed to be withdrawn without prejudice to the prosecution of this appeal challenging the decree on merits. So much so, the examination of this appeal would be based on the merits of the substance of the litigation and also from the angle whether the court below could have decided the case without the defendant delivering defence. See for support, Bhanu Kumar v. Archana Kumar, 2005 1 KerLT 456 , Ajith Mathews v. Sheelamma Thomas, 2011 2 KerLT 225 and Haridas v. Madhavi Amma, 1987 2 KerLT 701 .

(3.) Plaintiff sued for specific performance of Ext.A1 contract for sale, the recitals of which show that the proposed sale is against part consideration. Not a penny was left as balance consideration due at the sale. Nor was any payment made even on the date of the agreement. Consideration for the proposed sale is showed to have been accounted as against amounts received by the defendant during a spread out span of time.