Court affirmed defendants' right to contest after setting aside ex parte decree, conditional on providing security for the decree amount.

Sathish Ninan, J.

The applications filed before the trial court, to set aside the ex parte decree on condoning the delay, were dismissed for default. The applications, seeking restoration of the same on condoning delay, were dismissed. The defendants are in appeal.

2. We have heard the learned counsel on either side.

3. The suit is one for recovery of money. On 04.11.2019, the suit was posted for trial. On the said date, due to failure of the defendants to appear, the suit was set ex parte.

4. The defendants filed an application under Order IX Rule 13 of the Code of Civil Procedure , accompanied by an application to condone the delay of 2 days. The court dismissed the applications for default. It is seen that the dismissal was upon the failure of the applicants-defendants to adduce evidence. There was a delay of 117 days in filing the application seeking restoration. The said delay, having occurred during the period from 15.03.2020 to 28.02.2022, of which exclusion of limitation was granted by the Apex Court as per the judgment in In Re: Cognizance For Extension of Limitation v.

[2022 (1) KHC 240] , is liable to be eschwed.

5. As was noticed earlier, the application to set aside the ex parte decree was filed with a delay of only 2 days. The defendants had filed their written statements in the suit. All that remains is to proceed for trial. We are of the opinion that an opportunity can be granted to the defendants to contest the suit. The interest of the respondents-plaintiffs can be adequately secured by directing the defendants to furnish security for the decree amount.

6. In the result, the appeal is disposed of as hereunder:-

(i) The order impugned and the ex parte decree passed in O.S.No.30 of 2017 will stand set aside, and the suit is restored back to file, on condition that the appellants furnish security for the decree amount, to the satisfaction of the trial court, within a period of one month from today. It is clarified that even the property under attachment can be offered as security. However, the sufficiency of the same can be considered by the court.

(ii) On failure of the appellants to furnish the security as ordered above, the appeal will stand dismissed affirming the impugned order.

(iii) If on compliance of the condition the suit is restored back to file, we are sure that every endavour will be made for an expeditious disposal of the suit and preferably within a period of three months.

Parties to appear before the trial court on 16.02.2026.

Sd/-