Kerala High Court
Ramakrishnan vs Thanka on 7 October, 2022
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
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 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
FAO NO. 16 OF 2017
AGAINST THE ORDER/JUDGMENT IN O.S.NO.322/2011 OF
ADDITIONAL SUB COURT, PALAKKAD
APPELLANT/1ST DEFENDANT:
RAMAKRISHNAN, S/O.LATE KONNI, AGED 78 YEARS,
CHERUVALLIKADU, THACHANGAD, MATHUR AMSOM,
ALATHUR TALUK, PALAKKAD DISTRICT, PIN-678571.
BY ADV SRI.P.K.MOHANAN(PALAKKAD)
RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:
1 THANKA, AGED 70 YEARS,
W/O.MANIYAN, THARAYIL VEEDU, (POST)
THOLANNUR,THOLANNUR AMSOM, ALATHUR TALUK,
PALAKKAD DISTRICT, PIN-678722.
2 DEVI, AGED 66 YEARS,
W/O.SIVASANKARAN, VEDIKKARAN VEEDU,
PANDARAKKAVU, (POST)ELAPPULLY,
PALAKKAD DISTRICT, PIN-678622.
BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION
ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
FAO No.16/2017 2
JUDGMENT
A.Muhamed Mustaque, J.
This appeal is at the instance of the petitioner in I.A.No.565/2016 in O.S.No.322/2011 on the file of the Additional Subordinate Court, Palakkad. He was the defendant in the suit. He was set ex parte. Thereafter, he filed an application to set aside the ex parte decree. That was allowed on payment of the cost of Rs.1,500/-(Rupees one thousand and five hundred only) within five days. Since the cost was not paid, the application to set aside the ex parte decree was dismissed. Challenging the same, he has approached this Court.
2. It is apparent that there was an omission on the part of the appellant to pay the cost as ordered in the impugned order. The appellant expressed his willingness to pay the cost. The appellant was aged 76 years at that time. The cost ought to have been paid within five days from 09.09.2016. He appeared to have raised the cost on 23.9.2016 and submitted a memo to FAO No.16/2017 3 that effect. It was noted that the cost was not paid within time, the application has been dismissed. Anyway, we are taking a lenient view in this matter. According to us, the appeal can be allowed on the condition that the appellant pays the cost as ordered in the impugned order plus a sum of Rs.1,500/-, totalling Rs.3,000/- (Rupees three thousand only) within ten days from today. The cost shall be paid through the counsel appearing before this Court and the receipt shall be produced before the Sub Court, Palakkad. The parties are directed to appear before the Sub Court on 26.10.2022. We make it clear that if the appellant fails to pay the cost within the time as above, the appeal would stand dismissed and the appellant will not be entitled to any benefit.
The appeal is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE Sd/-
SHOBA ANNAMMA EAPEN, JUDGE ln