T.R. KRISHNAN Vs. N. NARAYANANKUTTY

JUDGEMENT

(1.) Heard the learned counsel for the petitioner and the learned counsel for the respondent.

(2.) Petitioner was the third defendant in O.S No.1050 of 2008 on the file of the Sub Court, Ernakulam. He was a partner in M/s.Cochin Fashion Jewellery, a registered partnership firm. Along with him, the firm as well as other partners were made defendants in the suit. The suit was decreed ex parte as per Ext.P2 judgment. Ext.P2(a) is the decree passed in the suit. Petitioner approached the court below seeking to set aside the ex parte decree by filing an application under Order 9, Rule 13 of C.P.C. As it was out of time, a petition under Section 5 of the Limitation Act for condoning delay was also filed. Both applications were resisted by the respondent. Ultimately, both were dismissed for default on 30-10-2015. Thereafter, the petitioner filed an application to restore the petition to set aside the ex parte decree under Order 9, Rule 13 of C.P.C, without filing an application for restoring the dismissed petition to condone the delay. The application for restoration was allowed on 24-05-2016. Again on 06-06-2016 the petition filed for setting aside the ex parte decree was dismissed for default. Thereafter, Ext.P3 application was filed with a request to condone delay of 5 days in filing the petition to set aside the ex parte decree. The court below as per Ext.P7 common order rejected all the prayers. Hence, the petitioner has come up before this Court.

(3.) Learned counsel for the petitioner contended that the respondent is taking steps to execute the decree only against him, despite the fact that there are other parties to the suit. Learned counsel for the respondent rightly submitted that the decree holder has the choice to proceed against any one of the judgment debtors, as their liability towards him is joint and several. Apart from that, Ext.P2(a) decree would show that the defendants are mulcted with personal liability as well.