Anil K. Narendran, J.

1. The appellants are the defendants in O.S.No.256 of 2008 on the file of the Court of the Subordinate Judge of Kochi. The said suit was filed by the respondent herein, initially seeking a decree for specific performance of an agreement for sale dated 26.3.2007, directing the appellants to execute a sale deed in favour of the respondent in respect of the plaint schedule property, having an extent of 53 cents, comprised in survey Nos.200/1 and 1511 of Edakochi Village and to put the respondent in possession of the same, with an alternate prayer for realisation of an amount of Rs. 1 Crore said to have been paid by the respondent to the appellants towards advance sale consideration together with interest @ 18% per annum and for a decree of permanent prohibitory injunction restraining the appellants from alienating or encumbering the plaint schedule property.

2. On receipt of summons, the appellants entered appearance and filed a written statement denying the allegations in the plaint and contending that, they had never agreed to sell the plaint schedule property to the respondent and that the respondent had never agreed to purchase the same. According to the appellants, the agreement dated 26.3.2007 happened to be signed as demanded by the respondent on the understanding that the respondent will provide an amount of Rs. 1 Crore to the second appellant for discharging his liability with the bank, but, the respondent did not pay any such amount to the second appellant. It was also contended that the respondent filed the suit in collusion with the tenants of the building situate in the plaint schedule property, against whom the second appellant had initiated eviction proceedings as R.C.P.No.10 of 2009 before the Rent Control Court, Kochi.

3. The respondent filed I.A.No.101 of 2011 seeking an amendment of the plaint in O.S.No.256 of 2008 by deleting the prayer for specific performance and to convert the suit into one for realisation of the advance amount of Rs. 1 Crore with interest @ 18% per annum. The said interlocutory application was allowed and the plaint was amended accordingly.

4. A reading of the memorandum of appeal would show that when the suit stood posted for payment of the balance court fee, the respondent filed I.A.No.1065 of 2011 seeking extension of time and the trial court granted extension upto 30.9.2011. On that day, the respondent filed I.A.No.1136 of 2011 for further enlargement of time for payment of the balance court fee and the same was also allowed by the trial court with a direction to pay the same within fifteen days. But, the respondent, instead of remitting the balance court fee, filed O.P.(Indigent) No.10 of 2011 with a prayer to permit him to continue the suit as an indigent person. The appellants filed objection to the said petition and ultimately, the respondent withdrew the same on 16.7.2013. Later, the respondent filed I.A.No.6 of 2013 with a prayer to permit him to continue the suit as an indigent person. The trial court by order dated 25.6.2013 allowed I.A.No.6 of 2013 and permitted the respondent to proceed with the suit as an indigent person.

5. Thereafter, the suit stood posted to 16.7.2013 for taking steps as a last chance. As there was no sitting on that day, the suit was adjourned to 2.8.2013 and on that day, the suit was ordered to be included in the list on 1.11.2013. On 1.11.2013, the suit was posted to 7.11.2013 for trial. Since there was no representation for the defendants, they were set ex parte on 7.11.2013 and a decree was passed in favour of the respondent on 22.11.2013.

6. On 21.12.2013 the appellants filed I.A.No.1886 of 2013 under Order IX Rule 13 of the Code of Civil Procedure, 1908 read with section 151 of the Code seeking an order to set aside the ex parte decree passed on 22.11.2013. The respondent opposed the said petition by filing a counter affidavit. The trial court by order dated 28.2.2014 allowed the petition on condition that the appellants sh