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Judgment
V. Chitambaresh, J.—The suit is one for realization of a sum of Rs. 1,09,387/- with interest on the principal sum of Rs. 81,117/-. The first defendant though had filed a written statement did not appear when the suit was called on for hearing on 12.07.2004. The first defendant was set exparte and I.A.No. 3054/2004 was filed under Order IX Rule 7 of CPC to set aside the same. The court below adjourned the application for hearing to 13.08.2004. The suit had however been decreed exparte in terms of the plaint on 14.07.2004. The first defendant thereupon filed I.A.No. 3325/2004 under Order IX Rule 13 of CPC on 30.07.2004. The court below dismissed the application on 10.02.2005 and the same has been affirmed in CMA No. 71/2005 on 21.10.2010. An attempt to review the same also failed and the orders are impugned in this original petition under Article 227 of
the Constitution of India.
The first defendant contends that her counsel met with an accident on 28.04.2004 and relies on a discharge summary issued by West Fort Hospital, Thrissur. The same reflects that the counsel for the first defendant was hospitalized during the period from 28.04.2004 to 06.05.2004. The counsel for the first defendant would have been taking rest thereafter at home as is required. It cannot be said that the first defendant has not established sufficient cause for her non appearance when the suit was called on for hearing.
I am inclined to afford an opportunity to the first defendant to defend the suit on merits since the stake involved is high. This is subject to the following conditions:
i) The petitioner/first defendant shall deposit a sum of Rs. 25,000/- within one month in the court below towards the decree debt in O.S.No. 493/2000 on the file of the Court of the Subordinate Judge of Thrissur.
ii) The same shall however not be withdrawn by the plaintiff Devaswam Board till the suit is finally disposed of.
Iii) A sum of Rs. 10,000/- shall be paid as costs to the counsel for the Cochin Devaswam Board in this original petition with in a period of three weeks from today.
The court below shall dispose of the suit expeditiously in the event of the exparte decree being set aside on compliance with the conditions by the first defendant. The order impugned will remain intact in case the first defendant omits to pay the costs and fails to deposit the portion of the decree debt as directed above.
Ext.P6 order in I.A.No. 3325/2004, Ext. P7 judgment in CMA No. 71/2005 and Ext.P9 order in I.A.No. 3871/2010 in CMA No. 71/2005 are set aside subject to the above conditions. The original petition is allowed. No costs.