2025:KER:28633 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947 FAO NO. 11 OF 2025 AGAINST THE ORDER DATED 26.07.2024 IN OS NO.269 OF 2019 OF III ADDITIONAL SUB COURT, ERNAKULAM APPELLANTS/PETITIONERS/DEFENDANTS: 1 CAMILLUS GEORGE AGED 56 YEARS S/O LATE I.A.GEORGE, ILLIPARAMBIL HOUSE, AQUINAS LANE , YUVA KALATHARANG ROAD, ELAMAKKARA P.O, KOCHI, PIN - 682026 2 MARY AGED 48 YEARS W/O CAMILLUS GEORGE,AGED 48 YEARS, ILLIPARAMBIL HOUSE, AQUINAAS LANE, YUVA KALATHARANG ROAD,ELAMAKKARA P.O. KOCHI, PIN - 682026 BY ADVS. K.S.SAJEEV KUMAR BISMI T.A. RAMESH.P.N. MOHANDAS K.CHACKO SUKESAN P.S. 2025:KER:28633 F.A.O. No.11 of 2025 -: 2 :- RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 AND 3 TO 5: 1 EUGINE ANTONY S/O GEORGE, AMAN MAHAL , CC 49/269A, PARAYIL ROAD, PUTHUKKALAVATTOM, ELAMAKKARA, KOCHI, PIN - 682026 2 USHA ALEX MANUEL NEDUMPARAMBIL HOUSE, 1ST FLOOR, KALATHARA, KURUPPANCHIRA ROAD, ELAMAKKARA., PIN - 682026 3 OMANA JOSEPH W/O K.G.JOSEPH, HOYSALA APARTMENTS, NEAR QUEEN MARY CHURCH, THOPPIL, EDAPPALLY, KOCHI, PIN - 682021 4 PEARLY LONA W/O LONA, 48/1209, AQUINAS LANE, NEAR BHAGYA ENCLAVE, ELAMAKKARA, KOCHI, PIN - 682036 BY ADVS. T MADHU C.R.SARADAMANI(S-891) RENJISH S. MENON(K/001486/2021) ALEENA JOSE(K/1082/2023) AVANTHIKA R.(K/001238/2023) KARTHIK KRISHNA M.(K/3518/2024) THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:28633 SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ. = = = = = = = = = = = = = = = = = = F.A.O. No.11 of 2025 = = = = = = = = = = = = = = = = = = Dated this the 3rd day of April, 2025 JUDGMENT Sathish Ninan, J. The applications filed by the appellants, seeking to set aside the ex parte preliminary decree in a suit for partition, on condoning the delay, were dismissed by the trial court, against which they are in appeal. 2. The suit was listed for trial on 24.03.2022. On the absence of the defendants, they were set ex parte and ex parte decree was passed. Seeking to set aside the ex parte decree, an application was filed as I.A.No.2 of 2022 under Order IX Rule 13 of CPC. Since 2025:KER:28633 F.A.O. No.11 of 2025 -: 2 :- there was a delay of 47 days in filing the application, I.A.No.1 of 2022 was filed seeking to condone the said delay. 3. The applications were dismissed by the trial court stating that the defendants have no contention with regard to the partibility of the property and that even the defendant’s share has been declared as per the ex parte decree. 4. We have heard the learned counsel on either side. 5. Appellants 1 and 2, who are defendants 1 and 2, are husband and wife. The 1st appellant is abroad and was unable to be present on the day fixed for trial. The above resulted in the ex parte decree. The very unavailability of the 1st defendant in station caused 2025:KER:28633 F.A.O. No.11 of 2025 -: 3 :- the delay of 47 days in seeking to set aside the ex parte decree. The appellants challenge the correctness of the observation of the trial court that since the share of the 1st defendant is also declared under the ex parte decree, there could be no grievance against the same. It appears that the appellants-defendants dispute the share. 6. The delay involved is only negligible. It is only proper that the appellants-defendants shall be granted an opportunity to agitate their contentions and invite a decree on merits. 7. Resultantly, the appeal is allowed. The order impugned is set aside. The applications will stand allowed. The delay will stand condoned and the ex parte decree will stand set aside. The trial court shall 2025:KER:28633 F.A.O. No.11 of 2025 -: 4 :- proceed to dispose of the suit afresh. Parties to appear before the trial court on 22.05.2025. Sd/- SATHISH NINAN JUDGE Sd/- SHOBA ANNAMMA EAPEN JUDGE yd