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2026 Supreme(Online)(Ker) 8578
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Sathish Ninan, P. Krishna Kumar, JJ
Favas – Appellant
Versus
Ameer – Respondent
FAO NO. 7 OF 2026
For the Appellants/Petitioners: Sri. Jamsheed Hafiz, Smt. T.S. Sreekutty
For the Respondents: Shri. K.P. Sudheer, Shri. Sherry M.V.
The court granted an opportunity to contest a suit by setting aside an ex parte decree contingent upon furnishing a bank guarantee to protect the respondent's interests.
Headnote:The judgment analyses the case concerning the setting aside of an ex parte decree under the provisions governing civil procedure. The appellant challenged the dismissal of the application to set aside such a decree, citing urgent business travel as the reason for non-appearance. The court found merit in allowing the appeal on conditions balancing the interests of both parties. The key issues included whether the defendant’s lack of communication constituted grounds for setting aside the decree. The court determined that a bank guarantee protecting the plaintiff’s interests was necessary to allow the appellant to contest the suit on its merits, ultimately permitting the appeal subject to certain conditions.
| Table of Content |
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| 1. defendant's challenge to ex parte decree due to absence. (Para 1 , 2 , 3) |
| 2. court's considerations on conditions for setting aside the decree. (Para 4 , 5) |
Sathish Ninan, J.
Challenging the dismissal of the application to set aside the ex parte decree, the defendant is in appeal. 2. We have heard the learned counsel on either side.
3. The suit is one for money. On the date on which the suit was listed for trial, the counsel for the defendant reported no instructions. This resulted in an ex parte decree.
4. The application to set aside the ex parte decree is filed well within the period of limitation. The reason stated for the non-appearance was that, he had to travel to Mysore urgently for his business purposes and he could not inform the lawyer about his inability to attend the court.
5. The trial court noticed that on earlier two occasions the suit was decreed ex parte and the decree was set aside on the defendant’s application. The court also noticed that the failure on the part of the defendant to inform the counsel about his inability to attend on the particular day, exhibits the callous nature of the defendant.
6. The learned counsel appearing for the appellant- defendant submitted that, as last chance, he may be permitted to contest the suit and adjudicate the same on merits. A suggestion was made by the Court that the ex parte decree could be set aside on the defendant furnishing bank guarantee for the decree amount. The defendant agreed for the same. Furnishing of bank guarantee would adequately protect the interests of the plaintiff. Though we find that the trial court was justified in having refused to set aside the decree, we are of the opinion that an opportunity can be granted to the defendant to contest the suit by protecting the interests of the plaintiff also.
In the result, the appeal is disposed of as hereunder:-
(i) The appeal will stand allowed and the ex parte decree will stand set aside on condition that the appellant furnishes bank guarantee for the decree amount, inclusive of interest and cost, within a period of two months from today.
(ii) If the ex parte decree is set aside as above, we are sure that, the suit being one of the year 2015, every endavour shall be made by the Court for its expeditious disposal.
(iii) In the event of failure to furnish the bank guarantee as ordered in clause (i) above, the appeal will stand dismissed affirming the impugned order.
Sd/-
