YACOB Vs. KUNJUMOL

JUDGEMENT

(1.) The appellant is the defendant in O.S. No. 413 of 2008 on the file of the Court of the Additional Subordinate Judge of North Paravur. The sole respondent is the plaintiff therein. The respondent instituted the suit on 15.9.2008 seeking specific performance of an agreement for sale stated to have been entered into between her on the one hand and the appellant on the other on 30.6.2007. Though the summons issued to the appellant was served in time, the appellant did not appear, with the result that when the suit was called on for hearing on 10.11.2008, he was set ex parte and the suit was decreed ex parte by judgment delivered on 1.12.2008. The appellant thereupon filed I.A. No. 5960 of 2008 on 20.12.2008 to set aside the ex parte decree. The said application was allowed by order passed on 28.5.2009 on payment of Rs. 500/- as costs. The appellant did not however file a written statement even thereafter and the suit was adjourned for ex parte evidence on 23.9.2009. On that date the appellant was absent. Consequently, an ex parte decree was passed directing him to receive the balance consideration in terms of the sale agreement and to execute a sale deed in favour of the plaintiff, within one month.

(2.) The appellant did not take steps in time to file an application to have the ex parte decree set aside. The plaintiff thereafter filed I.A. No. 74 of 2010 on 6.1.2010 for permission to deposit the sum of Rs. 2,25,000/- in the Mookkannur Service Cooperative Bank and to adjust it against the balance sale consideration payable. The said application was filed on the averment that the plaint schedule property is mortgaged in favour of the Mookkannur Service Co-operative Bank as security for a loan availed by the defendant. Notice on the said application was served on the defendant by paper publication pursuant to order passed on 12.8.2010 and the said application was allowed by order passed on 18.10.2010. The plaintiff thereafter filed I.A. No. 257 of 2011 on 19.1.2011 under section 28(3) of the Specific Relief Act, 1963 to cause the plaint schedule property to be measured and demarcated and to execute a sale deed in her favour. She had in the meanwhile deposited the balance sale consideration of Rs. 3,07,000/- and produced the lodgment schedule in court on 3.2.2011. The court below ordered notice on I.A. No. 257 of 2011 to the appellant. He thereupon entered appearance through counsel on 08.3.2011. He later filed a counter affidavit dated 6.6.2011 resisting the application. In the said objections, he contended that he has filed I.A. No. 1312 of 2011 to set aside the ex parte decree, that it is pending and therefore the relief prayed for in I.A. No. 257 of 2011 cannot be granted. The court below overruled the the said contention and allowed I.A. No. 257 of 2011 by order passed on 24.10.2011.

(3.) In the affidavit filed in support of I.A. No. 1312 of 2011, the application to set aside the ex parte decree passed in the suit, the appellant had averred that after he was set ex parte on the first occasion, he had filed an application to set aside the ex parte decree and it was set aside, that thereafter he left for Australia and therefore he could not file the written statement. The stand taken by him in the said affidavit is that the failure to file the written statement was not deliberate or intentional. He had also blamed the counsel appearing for him for not giving him timely instructions to file the written statement. He had further averred that it was only when he came to know about the application filed by the decree holder to have the sale deed executed, that he came to know about the ex parte decree passed in the suit. In the affidavit filed in support of I.A. No. 1313 of 2011 also, more or less similar averments were made. The respondent opposed the applications by filing separate written objections. The court below considered the rival contentions and dismissed I.A. Nos. 1312 of 2011 and 1313 of 2011 by a common order passed on 24.10.2011. Consequently, by order passed on 24.10.2011, I.A. No. 257 of 2011 filed by the decree holder under section 28(3) of the Specific Relief Act was allowed. The appellant has aggrieved by the order passed by the court below on 24.10.2011 dismissing I.A. No. 1312 of 2011 and 1313 of 2011 filed this appeal.