IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 15^TH DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 FAO NO.62 OF 2021 AGAINST THE ORDER IN I.A.NO.2/2020 IN O.S.NO.58/2008 OF PRINCIPAL SUB COURT, THALASSERY APPELLANTS/PETITIONERS/DEFENDANTS 1 AND 2:

1 MARJAN GOLD PVT.LTD., REP. BY ITS M.D.HANEEFA, AGED 53, S/O.IBRAHIM HAJI, ROOOM NO.44/2487, SHARARA PLAZA, A. V.K. NAIR ROAD, THALASSERY, KANNUR DISTRICT, AND PRESENTLY AT KAIRALI VILLA, MOODADI NORTH, KOZHIKODE DISTRICT - 673307.

2 K.K.HANEEFA, AGED 53, S/O.IBRAHIM HAJI, KAIRALI VILLA, MOODADI NORTH, KOZHIKODE DISTRICT - 673307.

BY ADVS.

M.R.VENUGOPAL DHANYA P.ASHOKAN RESPONDENTS/RESPONDENT NOS.1 TO 4/PLAINTIFF & DEFENDANT NO.3 TO 5:

1 MUHAMMED ASHRAF MELALT, AGED 55 YEARS, S/O.A.P.KHADER, BUSINESS, MAMMU MANZIL, P.O.KOTTAYAM, MALABAR, THALASSERY TALUK, REP.BY P.A.HOLDER O.C.HANEEFA, S/O.USMAN, AGED 50, DARULHIRN, P. O. MUTTUNGAL, VADAKARA, KOZHIKODE DISTRICT - 673106.

2 SAJANA HANEEFA, AGED 43 YEARS, W/O.MUHAMMED HANEEFA, DIRECTOR, MARJAN GOLD PVT. LTD., SHARARA COMPLEX, A.V.K.NAIR ROAD, THALASSERY AND PRESENTLY RESIDING AT KAIRALI VILLA, MOODADI NORTH, KOZHIKODE DISTRICT - 673307.

3 IMBICHI ALI, AGED 70 YEARS, FATHERS NAME NOT KNOWN, EXECUTIVE DIRECTOR, MARJAN PVT. LTD., 44/2487, SHARARA COMPLEX, AVK NAIR ROAD, THALASSERY AND PRESENTLY RESIDING AT ARANJANAKANDI HOUSE, P. O. KARAYAD, MEPAYOOR (VIA), KOZHIKODE - 673524.

4 KHALID HAJI, AGED 65 YEARS, S/O.ABOOBACKER, EXECUTIVE DIRECTOR, MARJAN PVT. LTD., 44/2487, SHARARA COMPLEX, AVK NAIR ROAD, THALASSEY AND PRESENTLY RESIDING AT P.P.

HOUSE, BEHIND KERALA GRAMIN BANK, MATTUL NORTH P. O., PAZHAYANGADI, KANNUR - 670325.

BY ADVS.

RAJESH V.NAIR FOR R1 ARUN SEBASTIAN FOR R2 & R3 V.T.MADHAVANUNNI FOR R4 V.A.SATHEESH FOR R4 R.PARTHASARATHY FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

A.Muhamed Mustaque, J This appeal was filed by defendants 1 and 2 in O.S.No.58/2008 on the file of the Principal Sub Court, Thalassery. The case had a chequered history of witnessing, dismissal, restoration etc.

2. The suit was dismissed for default on

08.01.2015. The appellants/defendants were contesting the case till the dismissal of the suit for default. Thereafter, the restoration petition was filed and was allowed, but the appellants/defendants remained ex parte. Accordingly, ex parte decree was passed on 19.10.2016. An execution petition was filed. In the execution, the appellants claim that they came to know about the attachment of the above property then. Due to the pandemic, there was some delay occasioned in approaching the court to set aside the ex parte decree. Ultimately, an application to set aside the ex parte decree was filed with condonation of the delay of 1165 days. This has been dismissed. The precise case of the appellants is that the appellants were not aware of the application filed for restoration. We attempted to peruse the records as to the service of notice on the appellants. No file is seen in the record. We ought to have remanded back the matter for fresh consideration. We note that in such exercise, further delay would be occasioned.

The case has been pending for 15 years now. 3. We heard the learned counsel appearing for the parties.

4. The learned counsel for the appellants offered to furnish security of Rs.5,00,000/- as a condition to set aside the ex parte decree, over and above, the property already under attachment.

5. The learned counsel for the respondents reluctantly accepted this suggestion.

6. Based on the submissions as above, we are of the view, the following orders can be passed as follows:

i. The appellants shall furnish a bank guarantee of Rs.5,00,000/- (Rupees five lakhs only) within one month from today as the condition to set aside the ex parte decree.

ii. The parties are directed to appear before the court below on 28.3.2023.

iii. There