IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946 OP(C) NO. 2592 OF 2024 OS NO.1146 OF 2010 OF ASSISTANT SESSIONS COURT/I ADDITIONAL SUB COURT, THRISSUR PETITIONER/APPELLANT/PETITIONER/DEFENDANT: SUBHASH AGED 47 YEARS S/O.THERUPARAMBIL KUTTAN,RESIDING AT PORKULAM VILLAGE,MANGAD DESOM,THALAPILLY TALUK,THRISSUR, PIN - 680542 BY ADVS. BONNY BENNY SANIL JOSE AMALJITH RESPONDENT/RESPONDENT/RESPONDENT/PLAINTIFF: K.M.ASEEZ AGED 66 YEARS KUNNATHUVALAPPIL,MUHAMMED,KATTAKAMBAL VILLAGE AND DESOM,THALAPPILLY TALUK,THRISSUR, PIN - 680586 BY ADVS. SREEHARI R C.PRABIN BENNY(K/1697/1999) HAMZA A.V.(K/1588/2022) APARNA M.P.(K/001753/2024) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 2592/2024 -2- 2025:KER:24909 JUDGMENT (Dated this the 21 st day of March, 2025) The petitioner is the appellant in CMA No.20/2018 which was filed challenging the common order in IA Nos.456/2017 and 457/2017 in OS No.1146/2010. The suit was filed to recover Rs.1,00,000/- from the appellant. A written statement was filled by the petitioner on 10.06.2011. Thereafter, he was set ex-parte, and the ex-parte judgment was passed on 07.02.2014. The petitioner filed IA No.1711/2014, through a power of attorney and the said petition was allowed on payment of Rs.1000/-. Thereafter, the case was listed for trial on 02.12.2016. On the day of trial, a request for adjournment was made but the same was not granted and the petitioner was set ex-parte again. The ex-parte decree was passed on 02.12.2016. The petitioner immediately filed IA No.457/2017 to set aside the ex-parte decree with a petition to condone the delay of 22 days as IA No.456/2017. Both the applications were dismissed by a OPC 2592/2024 -3- 2025:KER:24909 common order, against which the present CMA is filed. The Appellate Court concurred with the finding and dismissed the appeal by Ext.P7. The petitioner challenges Ext.P7 in this Original Petition. 2. The learned counsel for the petitioner, Sri. Bonny Benny, submits that the petitioner could not cross examine as the counsel was suffering from severe throat pain, fever and cough and therefore sought time. The Trial Court did not grant time and an ex-parte decree was passed. Immediately, an application was filed to set ex-parte decree, and a delay of 22 days occurred. Even though sufficient cause was shown, the Trial Court dismissed the application and the Appellate Court has also concurred with the same, taking note of the fact that even after eight years of passing of the first decree, the decree holder is not able to enjoy the fruits of the decree. No medical grounds were canvassed by the defendant, or no supporting documents were filed to adjourn the case. Therefore, it was held that the Trial Court OPC 2592/2024 -4- 2025:KER:24909 was right in dismissing it. 3. Heard the counsel for the petitioner as well as the counsel for the respondent. 4. Taking note of the fact that the suit is filed for money, and the reason for adjournment was that the counsel was not well, even though the counsel did not file affidavit stating this fact, taking a lenient view, I deem it appropriate to set aside Ext.P7 and allow CMA No.20/2018 and direct the Trial Court to conclude the trial within a period of three months from the date of receipt of a copy of this judgment, on condition that the petitioner remits an amount of Rs.10,000/- (Rupees Ten thousand only) as cost to the respondent. The cost to be paid to the respondent through their counsel within three weeks from today. Sd/- BASANT BALAJI JUDGE JS OPC 2592/2024 -5- 2025:KER:24909 APPENDIX OF OP(C) 2592/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PLAINT FILED IN OS NO.1146/2010 BEFORE THE SUB COURT, THRISSUR DATED 16.08.2010 Exhibit P2 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN OS NO.1146/2010 BEFORE THE SUB COURT DATED 10.06.2011 Exhibit P3 THE CERTIFIED COPY OF THE JUDGEMENT IN OS NO.1146/2010 DATED 2.12.2016 BEFORE THE 1ST ADDITIONAL SUB JUDGE, THRISSUR Exhibit P4 THE TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN OS NO.1146/2010 BEFORE THE SUB COURT, THRISSUR DATED 25.01.2017 Exhibit P5 THE CERTIFIED COPY OF THE COMMON ORDER IN IA NO. 456/2017 & IA NO. 456/2017 & IA NO. 457/2017 IN OS NO.1146/2010 DATED 21.12.2017 BEFORE THE 1ST ADDITIONAL SUB JUDGE, Exhibit P6 THE TRUE COPY OF THE CMA 20/2018 FILED BEFORE THE DISTRICT COURT, THRISSUR DATED 7.02.2018 Exhibit P7 THE CERTIFIED COPY OF THE JUDGEMENT IN CMA 20/2018 DATED 10.07.2024 BEFORE THE IV ADDITIONAL DISTRICT JUDGE, THRISSUR