2025:KER:27118 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. 36 OF 2025 AGAINST THE ORDER DATED 21.12.2024 IN I.A.NO.1 OF 2023 IN OS NO.144 OF 2010 OF SUB COURT, PATHANAMTHITTA APPELLANT/PETITIONER/JUDGMENT DEBTOR/DEFENDANT: PRADEEP KUMAR AGED 67 YEARS, S/O. PURUSHOTHAMA PANICKER ADIKURIYIL VEEDU, MANGARAM MURI, KONNI VILLAGE, PATHANAMTHITTA DISTRICT, PIN - 689691 BY ADVS. N.N.SASI HARISHANKAR S. RESPONDENT/RESPONDENT/DECREE HOLDER/PLAINTIFF: A.M. SHAMSUDEEN AGED 63 YEARS, S/O. MEERA SAHIB LABBA ANIYA VEETTIL, THAZHATHUMURI AYRAVON VILLAGE, KONNI TALUK PATHANAMTHITTA DISTRICT, PIN - 689691 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:27118 SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ. = = = = = = = = = = = = = = = = = = F.A.O. No.36 of 2025 = = = = = = = = = = = = = = = = = = Dated this the 28th day of March, 2025 JUDGMENT Sathish Ninan, J. The appellant is the defendant in a suit for specific performance of an agreement for sale. The suit was decreed ex parte on 11.02.2011. The application filed by the petitioner seeking to set aside the ex parte decree on condonation of delay, was dismissed by the trial court, against which he is in appeal. 2. It is the case of the appellant-defendant that, on receipt of summons in the suit he entrusted the 2025:KER:27118 F.A.O. No.36 of 2025 -: 2 :- matter with one Adv.A.M. Aji. He was assured that he would do all that is necessary to protect the interests of the defendant and that the defendant would be informed as and when his presence is necessary. Since 15.08.2015, he was under treatment at Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram. While so, he was served with a notice in E.P. No.26 of 2022. On enquiry, he learned that the suit was decreed ex parte on 11.02.2011 and that his counsel had expired even prior to that. The defendant was unaware of the death of the counsel and the decree. Accordingly, he sought for setting aside the ex parte decree on condonation of delay. 3. The trial court held that the long delay of 4344 days is not satisfactorily explained, and the 2025:KER:27118 F.A.O. No.36 of 2025 -: 3 :- applications were dismissed. 4. We have heard the learned counsel for the appellant-defendant. In spite of service of notice on the respondent-plaintiff, there is no appearance. 5. While it is true that there is a long delay of 4344 days in seeking to get the ex parte decree set aside, we notice various circumstances which impel us to allow his applications. The ex parte decree was passed on 11.02.2011. However, the plaintiff sought for execution of the decree only 11 years later, on 10.06.2022. The long delay creates suspicion. So also, the decree granted was one for specific performance of the alleged agreement for sale. However, the execution petition is filed only for realisation of the costs portion. The execution petition, a copy of which is 2025:KER:27118 F.A.O. No.36 of 2025 -: 4 :- handed over to us by the learned counsel, does not mention any reason why the plaintiff-decree holder did not seek execution of the main relief. It is the contention of the defendant that, even prior to the suit, the property in question was conveyed by him to the plaintiff. According to him, the suit and the proceedings are malafide and with ulterior motives. 6. Though the respondent-plaintiff was served with notice on the applications before the trial court and he entered appearance, he did not choose to file any objection to the applications. As was noticed supra, though the notice on this appeal was served on the respondent-plaintiff, he has not entered appearance. 7. The counsel to whom the appellant-defendant had given engagement passed away even before passing of 2025:KER:27118 F.A.O. No.36 of 2025 -: 5 :- the decree. The respondent-plaintiff do not have a case that the appellant-defendant was aware of the death of the counsel or the ex parte decree. Exts.A1 and A3 medical records evidence that the appellant-defendant was under treatment at Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram since 16.08.2015. 8. On the peculiar facts of the case as noticed above, we are of the opinion that the appellant- defendant is to be given an opportunity to contest the suit. Resultantly, the appeal is allowed and the order impugned is set aside. The applications will stand allowed. The ex parte decree dated 11.02.2011 will stand set aside. The trial court shall proceed to issue fresh 2025:KER:27118 F.A.O. No.36 of 2025 -: 6 :- notice to the parties and dispose of the suit afresh in accordance with law. Sd/- SATHISH NINAN JUDGE Sd/- SHOBA ANNAMMA EAPEN JUDGE yd