M SHERIEF Vs. K KUNJUMON

JUDGEMENT

(1.) In this appeal, the challenge is against an order passed by the Sub Court, Alappuzha in IA No.847/2016 in OS No.267/2011, dated 21-12-2016.

(2.) The appellant herein, who is the petitioner before the Sub Court in IA No.847/2016, is the defendant in the suit, OS No.267/2011. The respondent herein is the plaintiff. The suit was instituted seeking specific performance of a contract of sale of certain immovable property. The suit was decreed on 07-09-2016, after declaring the appellant exparte. IA No.847/2016 was filed seeking to set aside the exparte decree. By the order impugned in this appeal, the said application was allowed on payment of cost of Rs.15, 000/- which was stipulated to be paid to the respondent herein on or before 20-01-2017. It was made clear in the order that, if the appellant fails to make the payment of cost within the time stipulated, the interim application will stand dismissed without any further order. It is conceded that the appellant had failed in paying the cost, within the time stipulated. As a consequence, the interim application was dismissed by a further order passed by the Sub Court on 31-01-2017.

(3.) Eventhough various contentions were raised assailing the impugned order, we do not find any legal ground existing to hold that the court below was in any manner illegal, erroneous or improper. This is especially because of the history of the litigation narrated in the impugned order. It is stated that, the suit, which was filed in the year 2011, was listed for trial during the year 2013 and the appellant failed to appear and the suit was decreed ex-parte on 03-12-201 Later the said order was set aside at the instance of the appellant and the suit was included in the trial list. Then the appellant filed an application for appointing an Advocate Commissioner, as well as sought for amendment of the written statement. The amendment to the written statement was allowed by the court below, while the application for appointing of the Advocate Commissioner was dismissed. The dismissal of the application for appointment of the Commissioner was subjected to challenge before this court. An Advocate Commissioner was appointed consequent to direction issued from this court. But the Commissioner reported that the appellant had not co-operated with him in executing the warrant. Subsequently the Sub Court issued specific direction to the appellant and accordingly the Commissioner could file a report. Thereafter, when the suit was again listed for trial, it happened to be defaulted on the part of the plaintiff (the respondent herein). The suit was again restored on the files of the Sub Court and listed for trial again on 01-09-2016. On that day the appellant failed to appear. He was called absent and set ex-parte. The plaintiff was examined and the suit was decreed on 07-06-2016.