SUNIL AND OTHERS Vs. LALITHA

JUDGEMENT

(1.) The petitioners are the defendants 3 to 5 and 7 and 8 and the respondent is the plaintiff in the suit. The suit was filed for the realisation of Rs.9, 01, 423/- with interest at the rate of 12% per annum. The plaintiff claimed amount on the basis of a dishonoured cheque. The petitioners are the Trustee of the first defendant Trust. Even though summons was served to the defendants, they failed to appear before court. On 09.06.2008, the learned Sub Judge, Neyyattinkara as per Exts.P1 and P2 passed an ex parte decree allowing the plaintiff to realise Rs.9, 01, 423/- at the rate of 12% per annum from the date of suit till realisation with costs and a prohibitory injunction against the defendants from alienating the plaint schedule property till the realisation of the decree amount. The respondent/ plaintiff filed E.P. No. 59 of 2014 in O.S No. 50 of 2008 for realising the decree amount by attachment and sale of plaint schedule property. On 07.07.2008, the second defendant filed I.A No. 1118 of 2008 to set aside the ex parte decree. Even though notice has been ordered, no steps has been taken and accordingly, the IA was dismissed. The petitioners filed I.A No. 1627 of 2009 to restore I.A No. 1118 of 2018, which was dismissed for default on 26.11.2008. The petitioners have also filed I.A. No. 2139 of 2010 for condoning the delay of 297 days in filing I.A No. 1627 of 2009. On 05.01.2011, the learned Sub Judge dismissed both the IAs by Ext.P6 order. Hence this Original Petition.

(2.) The learned counsel for the petitioners submits that his Advocate Clerk has wrongly noted the posting date as 29.06.2008 and therefore, he could not take steps to serve notice to the respondent. The learned Sub Judge ought to have found that the petitioners filed I.A. No. 1118 of 2008 under Order IX Rule 13 CPC, which was dismissed for default. The petitioners opportunity to contest the suit was axed down which is unjustifiable. Order IX Rule 13 of CPC reads thus:

(3.) In Rajni Sharma v. Rajendra Kumar, 2017 KHC 3074, it is held in paragraphs 7 and 8 as follows: