Ex-parte decrees must follow due process and provide all parties with proper notice to ensure fairness in judicial proceedings.

JUDGMENT

Anil K. Narendran, J.

This appeal, filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908 , arises out of the order of the Second Additional Sub Court, Thrissur, dated 31.08.2019 in I.A.No.1465 of 2019 in O.S.No.124 of 2018. The appellants are the defendants in O.S.No.124 of 2018 filed by the respondent- plaintiff for realisation of Rs.35,00,000/- towards balance sale consideration, together with interest and cost, from the defendants and their assets. The Sub Court decreed the suit ex- parte, by the judgment dated 21.03.2019, directing the 1st defendant to pay an amount of Rs.35,35,000/- to the plaintiff, together with interest at the rate of 9% per annum from the date of suit till realisation. The defendants filed I.A.No.1465 of 2019, under Order IX Rule 13 of the , to set aside the ex-parte decree dated 21.03.2019 in O.S.No.124 of 2018. The plaintiff filed objection, opposing the relief sought for in that interlocutory application. After considering the rival contentions, the Sub Court, by the impugned order dated 31.08.2019, dismissed I.A.No.1465 of 2019 on the ground that the application lacks bonafides. Feeling aggrieved by that order, the defendants are before this Court in this appeal.

2. On 22.01.2020, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. On 06.07.2021, in I.A.No.1 of 2020, this Court granted an interim stay of the operation of the judgment and decree in O.S.No.124 of 2018, for a period of one month. On 06.07.2021, this Court called for the lower court records. Thereafter, on 30.07.2021, this Court called for a report from the Sub Court.

3. Heard the learned counsel for the appellants-

defendants and also the learned counsel for the respondent-

plaintiff.

4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order dated 31.08.2019 of the Sub Court in I.A.No.1465 of

2019 in O.S.No.124 of 2018.

5. The plaintiff filed O.S.No.124 of 2018 before the Sub Court for realisation of Rs.35,00,000/- from the defendants and their assets, towards balance sale consideration, together with interest and cost. As evident from the proceedings paper in O.S.No.124 of 2018, the plaint was presented before the Sub Court on 07.05.2018. In the suit, the Sub Court issued summons to the defendants, returnable by 27.09.2018. On that day there was no representation for the plaintiff. The defendants entered appearance and sought time to file written statement and the Sub Court posted the suit to 27.10.2018. On that day there was no sitting and therefore, the suit was reposted to 23.11.2018. On that day no written statement was filed by the defendants. The Sub Court posted the suit to 14.12.2018 for payment of Balance Court Fee and for evidence. On that day the plaintiff sought time for payment of Balance Court Fee and for evidence and the Sub Court granted time till 19.01.2019, on condition that no further time will be granted in that behalf. On 19.01.2019 there was no sitting and therefore, the suit was reposted to 16.02.2019. On that day, there was no sitting and therefore, the suit was reposted to 21.03.2019. 6. On 21.02.2019, the plaintiff filed I.A.No.688 of 2019 in O.S.No.124 of 2018, invoking the provisions under Rule 38 of the Kerala Civil Rules of Practice, 1971, seeking an order to advance the suit to a near date. As per Rule 38, which deals with advancement of hearing, any party who desires that the hearing be advanced, may apply therefore by interlocutory application of which notice shall be given to the other party. Admittedly, the plaintiff filed I.A.No.688 of 2019 seeking advancement of hearing in O.S.No.124 of 2018, without notice to the defendants, i.e., without serving a copy of that application to the learned counsel for the defendants. As per the endorsement made on the docket of I.A.No.688 of 2019, on 23.02.2019 the Sub Court heard the learned couns