2025:KER:26573 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 FAO NO. 24 OF 2025 AGAINST THE ORDER DATED 30.10.2024 IN OS NO.8 OF 2016 OF SUB COURT, QUILANDY APPELLANT/PETITIONER/DEFENDANT: SREEKUMAR R MENON AGED 56 YEARS S/O RAJAN MENON, PUNDAREDEVI, VNRA 44, VIVEKANANDA NAGAR, ELAMAKKARA, COCHIN, PIN - 680026 BY ADVS. C.R.SANISH ARJUN SASI KARTHIK S. ACHARYA ANJANA K.P. RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1 KALLUVALAPPIL CHANDREIKA W/O MANIKARAMBATH SATHYAN, SOUPARNIKA HOUSE, BALUSSERY P O, KOYILANDY, KOZHIKODE, PIN - 673612 2025:KER:26573 F.A.O. No.24 of 2025 -: 2 :- 2 MANIKARAMBATH SATHYAN (DIED) AGED 62 YEARS, S/O GOPALAN NAIR, SOUPARNIKA HOUSE, BALUSSERY P O, KOYILANDY, KOZHIKODE. PIN - 673612 3 SAJNA AGED 35 YEARS, SOUPARNIKA HOUSE, BALUSSERY PO, KOYILANDY, KOZHIKODE, PIN - 673612 4 SAJITHA AGED 33 YEARS, SOUPARNIKA HOUSE, BALUSSERY P O, KOYILANDY, KOZHIKODESOUPARNIKA HOUSE, BALUSSERY P O, KOYILANDY, KOZHIKODE, PIN - 673612 5 SARATH SOUPARNIKA HOUSE, BALUSSERY P O, KOYILANDY, KOZHIKODE,PIN-673612. IT IS RECORDED THAT 2ND RESPONDENT IS NO MORE AND RESPONDENTS 1,3,4 AND 5 ARE THE LEGAL REPRESENTATIVES OF THE 2ND RESPONDENT. BY ADVS. V.V.SURENDRAN – FOR R1, R4, R5 P.A.HARISH(K/000392/1991)– FOR R1, R3-R5 DONA PAUL(K/001661/2018)– FOR R1, R4, R5 SHILPA K.(K/1843/2023)– FOR R1, R4, R5 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:26573 SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ. = = = = = = = = = = = = = = = = = = F.A.O. No.24 of 2025 = = = = = = = = = = = = = = = = = = Dated this the 28th day of March, 2025 JUDGMENT Sathish Ninan, J. The applications seeking to set aside the ex parte decree, on condoning the delay of 1613 days, were dismissed by the trial court. The petitioner-defendant is in appeal. 2. The suit for money was decreed ex parte on 20.06.2018. In execution of the decree, the property was sold on 15.09.2022. On the said date, the petitioner filed the present applications to set aside the ex parte decree on condonation of delay. According to the petitioner, he came to know about the ex parte decree 2025:KER:26573 F.A.O. No.24 of 2025 -: 2 :- only when the notice under Rule 66 of Order XXI of CPC was affixed at the residence. The counsel, who was given vakkalath, expired. The present applications are filed through another counsel, it was contended. The trial court dismissed the applications. 3. We have heard the learned counsel on either side. 4. The petitioner had originally participated in the trial of the suit. After the cross examination of PW2, the petitioner filed an application to decide on the territorial jurisdiction of the court, and another application to recall PW1. Both the applications were dismissed by the trial court. Challenging the same, the petitioner approached this Court in O.P.(C) No.226 of 2018 and O.P.(C) No.227 of 2018. The original petitions 2025:KER:26573 F.A.O. No.24 of 2025 -: 3 :- were dismissed as not pressed, on 12.03.2018. Thereafter, the defendants remained ex parte in the suit. The suit was decreed ex parte on 20.06.2018. 5. In the execution petition, notice under Rule 22 of Order 21 CPC was served on the petitioner-judgment debtor. However, he did not choose to appear. He was absent and was set ex parte on 05.10.2019. Thereafter the Court ordered issuance of Rule 66 notice and posted the case on 26.10.2019. On the said date, the petitioner-judgment debtor entered appearance. Thereafter, due to Covid-19 pandemic, the case was being adjourned. On 29.01.2022, the court ordered fresh Rule 66 notice to parties. The petitioner-judgment debtor remained ex parte. It is thereafter that the sale was held. 2025:KER:26573 F.A.O. No.24 of 2025 -: 4 :- 6. The petitioner-judgment debtor filed applications as E.A. No.1242 of 2022, E.A. No.1243 of 2022 and E.A. No.1246 of 2022 under Section 47 CPC and also to set aside the order in the execution setting him ex parte. On 12.01.2023, all the applications were dismissed for default. Thereafter, the sale was confirmed on 12.01.2023. 7. There is no explanation for the petitioner for having not appeared in the suit after getting the original petitions filed before this Court dismissed as not pressed on 12.03.2018. He was served with notice under Order XXI Rule 22 CPC but he did not care to appear. Though he was served with notice under Rule 66 and he entered appearance in execution proceedings on 24.10.2019, he did not choose to prefer application to 2025:KER:26573 F.A.O. No.24 of 2025 -: 5 :- set aside the ex parte decree. The applications filed by him in the execution proceedings, to set aside the ex parte order in execution, was dismissed for default. The entire conduct of the petitioner as above demonstrates his callousness and lack of interest in defending the proceedings. 8. The learned counsel appearing for the appellant made a fervent plea that the Court may, as last chance, grant an opportunity to the petitioner to contest the suit and invite a decision on merits. 9. It is trite that every endeavour shall be made by the Court to have a lis decided on merits rather than a disposal on default. As noticed above, the conduct of the petitioner is far from unsatisfactory. The suit is of the year 2016. The decree is for realisation of 2025:KER:26573 F.A.O. No.24 of 2025 -: 6 :- approximately Rs.1.18 crores with 9% interest from the date of suit. Considering the entire facts, we are of the opinion that one last opportunity can be granted to the petitioner-defendant to have his contentions in the suit decided on merits but, on securing the interests of the plaintiff-respondent also. We feel that the petitioner-defendant could be called upon to furnish security for the decree debt and compensate the respondent with costs. Resultantly, the appeal is allowed and the ex parte decree is set aside on condoning the delay, subject to the condition that the appellant furnishes security for the decree debt, inclusive of interest and costs, to the satisfaction of the trial court, on or before 30.05.2025 and pays an amount of Rs.20,000/- as costs to the 2025:KER:26573 F.A.O. No.24 of 2025 -: 7 :- counsel appearing for the respondent-plaintiff before this Court within that date. In case of failure to comply with the conditions as above, the appeal will stand dismissed affirming the impugned order. Post on 02.06.2025 to verify compliance. Sd/- SATHISH NINAN JUDGE Sd/- SHOBA ANNAMMA EAPEN JUDGE yd