JUDGMENT (S.B. Sinha, J.)

1. Leave granted.

2. This appeal is directed against the judgment and order dated 6.3.2006 passed by the High Court of Kerala in Writ Petition (C) No. 33208 of 2005 and I.A. No. 3350 of 2006 in Writ Petition No. 12156 of 2005.

2.1 Defendant - judgment debtor is the appellant before us.

2.2 The properties in suit belonged to one Francis Periera (Periera), the predecessor-in-interest of the respondent. A deed of usufructuary mortgage was executed by him in favour of one Kumaran Kesevan, the predecessor- in-interest of the appellants. Periera is said to have executed a will in terms whereof the equity of redemption in respect of the said mortgage ultimately devolved on some of his children. A suit was filed for redemption of the said mortgage by his successors. A preliminary decree was passed therein. Final decree was passed on 11.7.1997 directing the respondents herein to deposit a sum of Rs.41,33,508.70 within a period of six months purported to be as a part of the redemption being the value of the substantial improvements effected by the mortgagees in the said properties. Indisputably, the said amount was not deposited. An application for extension of time being I.A. No. 247 of 1998 was filed by the respondents on 6.1.1998, which was allowed in terms whereof the time for deposit of the amount was extended upto 11.7.1998. However, on 10.7.1998, another application for extension for a period of six months was filed. It was marked as I.A. No. 5800 of 1998, but the same was dismissed. The earlier Application being I.A. No.247 of 1998 also came to be dismissed ultimately by an order dated 13.7.1998 for default. An application for restoration thereof was filed on 1.9.1999. By an order dated 8.2.2001, the said application for restoration was allowed and the time to deposit the amount was extended till 16.2.2001.

2.3 On 22.2.2005, the 19th plaintiff, respondent No. 1 herein, being son of the deceased 4th plaintiff filed an application marked as I.A. No. 2253 of 2005 praying for condoning the delay in making the deposit and for issuance of challan for depositing the amount stating that he was not aware that the said amount has to be deposited and he could come to know thereabout only when he received the certified copy of the decree on 20.10.2004.

3. The II Additional Munsiff by his order dated 31.3.2005 allowed the said I.A upon condoning the delay on payment of cost of Rs.1000/- directing:

"But the petitioner filed affidavit stating that he came to know about the amount only on 20.10.2004. The petitioner could have filed the affidavit by stating the dismissal of the earlier applications filed for extending the time for paying the amount. The petitioner has no complaint against his counsel. Considering the huge amount to be paid by the petitioner I hold that the delay can be condoned subject to condition to pay cost of Rs.1000/- to the contesting second counter petitioner for the ends of justice. In the result I.A. is allowed and the delay is condoned on payment of cost of Rs.1000/- to the second counter petitioner. The challan shall be issued to the petitioner for remitting the amount as per final decree. The petitioner shall deposit the said amount on or before 7.4.2005 otherwise the petition will be stand dismissed."

Indisputably, the said order was not complied with. Respondent No. 1 filed another application being I.A. No. 4106 of 2005 for further extension of time, which was rejected on 8.4.2005.

Aggrieved thereby and dissatisfied therewith, a Writ Petition which was marked as Writ Petition (C) No. 12156 of 2005 was filed. By reason of a judgment and order dated 20.5.2005, the said Writ Petition was allowed without any notice to the respondents therein, directing:

"2. Considering the facts of this case, I find that it is not necessary to issue notice to all the 12 Respondents. Hence, notice is waived.

3. Taking into account the various facts brought to my notice and also the quantum of the value of impro