Sunil and Ors. Vs. Lalitha - (High Court of Kerala) (21 May 2018)

Court shall not set aside the decree on mere irregularity in service of summons

MANU/KE/1053/2018

Civil

The Petitioners are the Defendants 3 to 5 and 7 and 8 and the Respondent is the Plaintiff in the suit. The suit was filed for the realisation of Rs. 9,01,423 with interest at the rate of 12% per annum. The Plaintiff claimed amount on the basis of a dishonoured cheque. The Petitioners are the Trustee of the first Defendant Trust. Even though summons was served to the Defendants, they failed to appear before Court. On 09th June, 2008, the learned Sub Judge passed an ex parte decree allowing the Plaintiff to realise Rs. 9,01,423 at the rate of 12% per annum from the date of suit till realisation with costs and a prohibitory injunction against the Defendants from alienating the plaint schedule property till the realisation of the decree amount.

The Respondent/Plaintiff filed E.P. No. 59 of 2014 in O.S. No. 50 of 2008 for realising the decree amount by attachment and sale of plaint schedule property. On 7th July, 2008, the second Defendant filed I.A. No. 1118 of 2008 to set aside the ex parte decree. Even though notice has been ordered, no steps has been taken and accordingly, the IA was dismissed. The sole issue to be considered is whether there was any laches on the part of the Petitioner in prosecuting the case.

An ex-parte decree against a Defendant can be set aside if the party satisfies the Court that, summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the Court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the Court.

The learned Sub Judge has attached about 6 acres and 35 of cents of land, where Victory Vocational Higher Secondary School is situated, for realisation of the decree debt. In Sreedhara Kurup v. Michael, it is held that, the broad principle of natural justice that informs judicial institution is that the litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. It is also held that, the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs.

In the present case, from the beginning onwards, there was laches on the part of the Petitioners in prosecuting the case. Even after getting summons of the Court, the Petitioner has not cared to appear before the Court in time and therefore, the ex parte decree was happened to be passed by the court below. The restoration application filed by him was also dismissed for the failure to take steps.

It is true that, there is laches on the part of the Petitioners in prosecuting the case. The Petitioners' counsel argued that, the Petitioners have got good case as against the Respondent. The decree amount is Rs. 9,01,423. The intention of the Petitioners is to drag the matter without giving a chance to the Respondent to execute the decree. As has been held in Sreedhara Kurup, it is just and proper to take a liberal approach in the matter and the laches on the part of the Petitioners can be corrected by awarding curative costs.

Present petition is allowed and the orders on the file of Sub Court, is set aside and the matter is restored to file on condition that, the Petitioners shall deposit an amount of Rs. 2,00,000 before the trial Court and shall pay an amount of Rs. 10,000 to the Legal Service Authority of the Sub Court on or before 30th June, 2018.

Relevant : Sreedhara Kurup vs. Outhakutty MickelMANU/KE/0226/1968

Tags : EX-PARTE DECREE DELAY CONDONATION