PAILY v. JOHN

The writ petition is filed for seeking the following reliefs. i) Call for the records Ext.P5 and quash Ext.P4 and P5 by a writ of certiorari or any other appropriate writ, order or direction; ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the Munsiff's Court, Moovattupuzha to restore the suit O.S No. 702/98 to file;

Petitioner was the defendant in O.S 702/98 on the file of the Munsiff Court, Moovattupuzha. W.P.(C).No.19770 OF 2009 2 Suit was one for specific performance and it was instituted by the respondent. Suit was decreed exparte. Long after passing of the exparte decree, petitioner moved an application under Order 9 Rule 13 of the Code of Civil Procedure with a petition to condone the delay of more than 2200 days. The application was opposed by the respondent and in the enquiry that followed other than producing two documents, the petitioner did not even mount the box to examine himself to depose cause, if any, leave alone sufficient cause for his absence. The learned Munsiff not being satisfied with the cause shown for the condonation of delay, dismissed the petition, with the result the application moved for setting aside the exparte decree was also rejected. Against that adverse order, petitioner preferred an appeal before the Sub Court, Moovattupuzha as C.M.A 16/07 and the learned Sub Judge after hearing both sides concurring with the views taken by the W.P.(C).No.19770 OF 2009 3 Munsiff dismissed that appeal. Impeaching the correctness and propriety of the judgment rendered by the learned Sub Judge and also the order passed by the learned Munsiff, petitioner has filed this petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India.

I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to the materials tendered in the petition, I find no notice to the respondent is necessary, and it is dispensed with. Perusing the order of the learned Munsiff, I find that opposing the application, the respondent had contended that while execution of the decree was taken by the plaintiff on the basis of an exparte decree passed earlier the judgment debtor / W.P.(C).No.19770 OF 2009 4 defendant approached the execution court and moved for stay of execution submitting that he was taking steps for setting aside that exparte decree. Entertaining that petition, the execution court stayed the proceedings and, thereupon, the decree holder did not press that execution petition. Suit was later restored to file after setting aside the exparte decree. After such restoration the petitioner/defendant again failed to appear and contest the suit which resulted in setting the petitioner exparte once again. No written statement was also filed by him in the suit. Pursuant to that an exparte decree was again passed in the suit. After passing of the decree, the respondent/decree holder moved for execution and thereupon, a sale deed was executed through court, delivery effected and satisfaction of the decree recorded. After completion of all these proceedings, the judgment debtor has again moved W.P.(C).No.19770 OF 2009 5 for setting aside the exparte decree with a petition to condone the delay of nearly seven years after the passing of the exparte decree. Having regard to the facts presented, I find no impropriety can be attributed to the orders passed by both the courts below. The writ petition lacks merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE // TRUE COPY // P.A TO JUDGE