Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 17TH DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 FAO NO. 55 OF 2016 AGAINST THE ORDER DATED 07.01.2016 IN I.A. 526/15 AND APPELLANT/PETITIONER/1ST DEFENDANT: ABDUL GAFOOR, AGED 41 YEARS, S/O.CHEKKU @ KUTTAPPA, PALATTUTHARAYIL VEEDU REPRESENTED BY POWER OF ATTORNEY HOLDER,SHEFEER, S/O.CHEKKU @ KUTTAPPA, AGED 33 YEARS PALATTUTHARAYIL VEEDU, EASWARA MANGALAM AMSOM, PUZHAMBRAM DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV SRI.C.M.MOHAMMED IQUABAL RESPONDENT/RESPONDENT/PLAINTIFF: HAREES, AGED 38 YEARS, S/O.THOZHUTHINGAL KUNHITTY, KOLALAMBU AMSOM,POOKARATHARA DESOM, PONNANI TALUK, MALAPPURAM DISTRICT 677 610 BY ADV SRI.JAMSHEED HAFIZ THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 17.03.2023, ALONG WITH FAO.56/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 17TH DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 FAO NO. 56 OF 2016 AGAINST THE ORDER DATED 07.01.2016 IN I.A. 528/15 AND
APPELLANT/PETITIONER/2ND DEFENDANT: NASEERA, AGED 36 YEARS, D/O.PULPRAYAKATH BAVA, EASWARA MANGALAM AMSOM,PUZHAMBRAM DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV SRI.C.M.MOHAMMED IQUABAL RESPONDENT/RESPONDENT/PLAINTIFF: HAREES, AGED 38 YEARS, S/O.THOZHUTHINGAL KUNHITTY, KOLALAMBU AMSOM,POOKARATHARA DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV SRI.JAMSHEED HAFIZ THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 17.03.2023, ALONG WITH FAO.55/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..3..
J U D G M E N T
A. Muhamed Mustaque, J These appeals have been filed by the defendants in O.S No.192 of 2012 on the file of
the Sub Court, Tirur. The appellants in these appeals are husband and wife. The husband is working abroad. The notice appears to have been served on the wife. An ex-parte decree was passed. Thereafter, an execution petition was filed. An application to set aside the ex-parte
decree was filed along with an application to condone the delay of 287 days. These applications have been dismissed. Challenging that, these appeals have been preferred.
2. Notice appears to have been served by way of affixture. The case of the appellant is that it is only when he received a notice in the execution petition, he came into know about the ..4..
suit. It is a money suit claiming Rs.20 Lakhs.
3. In the court below, PW1- the power of
attorney holder of the parties was examined. Thecourt below noted that in the execution petition, notice was served on the wife and notice to the
husband was affixed on the house. So, there was sufficient notice. It is also noted that 3rd party filed a claim petition. In the claim petition, notice was served on the wife. Accordingly, dismissed the application holding that there was no sufficient cause. It may be
true that notice has been served on the wife and the fact remains that the husband was abroad. Taking note of the facts and circumstances, we are of the view that laches in these matters can be condoned on payment of cost of Rs.20,000/- in total. The cost shall be paid to the respondent through the learned counsel appearing for the respondent before
..5.. this Court within a period of two weeks. If the cost as above is paid, the ex-parte decree would stand set aside. The parties are directed to appear before the court below on 4.04.2023. Thereafter, the suit shall be disposed of within a period of four months thereon. Sd/- A.MUHAMED MUSTAQUE JUDGE Sd/- SHOBA ANNAMMA EAPEN JUDGE PR