The court emphasized a liberal approach in allowing petitions to set aside ex parte decrees, particularly when substantial issues warrant adjudication on merits.

JUDGMENT :

(Viju Abraham, J.)

The above original petition is filed seeking to set aside Ext.P14 judgment dated 8.12.2021 in CMA No.9 of 2018 on the file of the Addl. District Court-III, Alappuzha.

2. Petitioner herein is the additional 4th appellant in CMA No.9 of 2018 on the file of the Addl. District Court-III, Alappuzha. The respondents 1 to 9 are the respondents in the said CMA. The original plaintiffs are direct brother and sisters of the defendants 1 & 2. During the pendency of the CMA the original 1st defendant died. OS No.310 of 2011 was filed by the original plaintiffs viz., V.R.Chandrasekhara Panicker, Smt.V.K.Saraswathy Amma and Smt.K.Indira Devi seeking partition of plaint A and B schedule properties having an extent of 52 cents and 50 cents respectively.

3. The specific case of the 1st defendant was that his father viz. Rama Panicker had executed Gift Deed No.93/1974 and Will Deed No.16/III/74 of SRO, Kalavoor and he is in possession of the plaint schedule property and properties are mutated in his name and is paying tax also and hence the plaint schedule properties are not partible and that there is every possibility of a judgment in his favour, if the suit is decided on merits. The original 1st defendant was aged 81 and he met with a road accident on 17.3.2011 and sustained fracture on his left knee. Thereafter he was not fully resumed his health after the accident as he became bed ridden and he was not in a position to move about without any external aid or support. Apart from that he is suffering from various age related ailments and as a result, he could not entrust the case to his advocate on time and thereupon suit was decreed ex parte and Ext.P5 preliminary decree was passed on 16.9.2014. The original 1st defendant's daughter and son were working abroad and he is residing with his wife aged 80, who is also suffering from old age ailments. In the year 2012 the original 1st defendant had undergone an eye operation in the Ahalya Foundation Eye Hospital, Palarivattom. Later on 14.11.2016, he was admitted in the Sahrudaya Hospital, Alappuzha due to stroke and was not able to speak and had undergone treatment as an inpatient till 19.11.2016. On 23.11.2016, he fell down and had fracture on 7th,8th and 9th ribs. Again on 12.3.2017 he fell down and as a result there was fracture on his right femur and femur implant surgery was done. From 14.4.2017 onwards, he continued the treatment as an inpatient at Assisi Hospice Palliative Care Centre and later on he was referred to Sahrudaya Hospital and treated as an inpatient. On receipt of the information about the ex parte decree from the original 1st plaintiff on 15.1.2018, the original 1st defendant with the assistance of the petitioner herein when she came on leave from abroad, filed IA No.2913/2017 with a prayer to condone the delay of 992 days in filing the petition and IA No.2919/2017 to set aside the ex parte decree which has produced as Exts.P6 and P7 in this original petition. The original 1st defendant has also produced Ext.P2 Gift Deed, Exts.P3 and P4 tax receipts and also the Discharge Summary showing his treatment and illness during that period and the same was marked as Exts.A7 to A10 and copies of which are produced herein as Exts.P8 to P11. The trial court without considering the above facts and circumstances in a proper perspective, dismissed the applications as per Exts.P12 and P13. Aggrieved by the same, an appeal was preferred as CMA No.9 of 2018 before the Additional District Court-III, Alappuzha through his power of attorney holder of the 1st defendant. While the CMA was pending the original 1st defendant who is the appellant died. Pursuant to his death Sreedeviamma and his children got impleaded as the additional appellants 2 to 4. The lower appellate court dismissed the appeal as per Ext.P14 judgment. It is aggrieved by the same the original petition has been filed.

4. The learned counsel for the petitioner would submit that sufficient reasons have been