P.N.Ravindran, J.
This appeal and writ petition arise out of orders passed by the Sub Court, Attingal in O.S.No.2 of 1999. The appellant in F.A.O.No.28 of 2009 is the respondent in W.P.(C) No.24668 of 2010. These cases were therefore heard together and are being disposed of by this common judgment.
2. The appellant in F.A.O.No.28 of 2009 (hereinafter referred to as 'the plaintiff' for short) instituted O.S.No.2 of 1999 for realisation of the sum of Rs.4,29,735/- from the respondent in the appeal with interest and costs. The respondent in the appeal, who is the petitioner in W.P.(C) No.24668 of 2010, was served and he entered appearance and filed a written statement. When the suit was listed for trial, he was absent. He was therefore set ex-parte on 4.8.2001 and an ex-parte decree was passed on 25.8.2001. He thereupon filed I.A.No.1389 of 2001 to set aside the ex-parte decree. When I.A.No.1389 of 2001 was called on for hearing on 30.10.2001 there was no representation and it was dismissed for default. He thereupon filed I.A.No.1618 of 2001 seeking a review of the order dismissing I.A.No.1389 of 2001 for default. I.A.No.1618 of 2001 was allowed on payment of costs. Since the costs ordered was paid, the order dismissing I.A.No.1389 of 2001 for default stood set aside and it was restored to file. Later, I.A.No.1389 of 2001 was heard and allowed subject to the payment of Rs.2,500/- as costs to the plaintiff on or before 20.3.2004. The defendant did not pay the costs. Instead, on 19.3.2004, he filed I.A.No.428 of 2004 seeking enlargement of the time stipulated by the trial court for payment of costs, by one month. Though the court below dismissed I.A.No.1389 of 2001 by order passed on 20.3.2004 for non payment of costs, it did not pass orders on I.A.No.428 of 2004. The defendant thereupon filed I.A.No.581 of 2004 on 15.5.2004 praying for restoration of I.A.No.1389 of 2001. The trial court treated I.A.No.581 of 2004 as a petition for review of the order dismissing I.A.No.1389 of 2001 and dismissed it by order passed on 24.9.2004. The defendant challenged the order passed by the trial court dismissing I.A.No.581 of 2004 in this Court by filing W.P.
(C) No.6494 of 2005. The said writ petition was dismissed by judgment delivered on 27.10.2006 holding that the defendant's remedy is to challenge the order dismissing I.A.No.1389 of 2001 in appeal. He thereupon filed F.A.O.No.141 of 2007 in this Court on 7.3.2007 challenging the order passed by the trial court on 24.9.2004 dismissing I.A.No.581 of 2004. He did not file an appeal challenging the order passed by the trial court on 20.3.2004 dismissing I.A.No.1389 of 2001. This defect was noticed when F.A.O.No.141 of 2007 came up for hearing. The defendant thereupon filed F.A.O.No.332 of 2007 in this Court on 13.11.2007 challenging the order passed by the trial court on 20.3.2004 dismissing I.A.No.1389 of 2001. The appeals were heard and allowed after notice to the plaintiff, by a Division Bench of this Court by judgment delivered on 28.11.2007. This Court held that though the conduct of the defendant is blame-worthy, as the trial court had not disposed of I.A.No.428 of 2004 before dismissing I.A.No.1389 of 2001, the defendant should be afforded an opportunity on terms. The Division Bench accordingly allowed the appeals subject to the condition that the defendant shall pay an amount of Rs.10,000/- as costs within one month from 28.11.2007 and subject to further condition that he should furnish proper security to the satisfaction of the trial court within the said period of one month, for the entire decree amount. The Division Bench observed that in case either of the two conditions are not satisfied, the appeals will stand dismissed.
3. It is not in dispute that the sum of Rs.10,000/- ordered to be paid as costs was paid by the defendant in time. He had also filed a bond dated 19.12.2007 in the court below offering 12¼ cents of land and the residential building therein as security. Along with the said bond, the original of the title deed, the encumbrance certificate and tax receipt had not been produced. The property has also not been valued. The court below considered the bond submitted by the defendant and by its order dated 16.7.2008 held as follows:
“Heard. Condition as to furnishing security not complied for further steps.”
4. A month later, the defendant filed E.A.No.115 of 2008 to review the said order. The plaintiff filed objections contending inter alia that the bond is not in the prescribed form, that the defendant has not furnished security as required by the rules and therefore, there is no scope to review the order passed by the court below on 16.7.2008. By order passed on 4.11.2008, a copy of which is produced as Annexure 5 in F.A.O.No.28 of 2009, the court below allowed E.A.No.115 of 2008 and granted the defendant one month's time to produce the valuation certificate. The said order is under challenge in F.A.O.No.28 of 2009. Notwithstanding the fact that the court below had by the order impugned in F.A.O.No.28 of 2009 granted one month's time to the defendant to furnish the valuation certificate, it was not furnished. Instead, on 6.12.2008 he filed an application for further time to produce the valuation certificate. The operation of Annexure 5 order dated 4.11.2008 was stayed by a Division Bench of his Court by interim order passed on 22.1.2009 in F.A.O.No.28 of 2009. In view of the said development, the decree holder filed E.A.No.97 of 2010 in E.P.No.135 of 2004 on 29.5.2010 to take up the execution petition for settlement of the sale proclamation. The said application was allowed by the court below on the execution side by order passed on 3.6.2010, a copy of which is produced in W.P.
(C) No.24668 of 2010 as Ext.P9. The defendant has in W.P.(C) No.24668 of 2010 challenged Ext.P9 order while in F.A.O.No.28 of 2009 the plaintiff challenges Annexure 5 order passed by the court below granting the defendant one month's further time to produce the valuation certificate.
5. We heard Sri.M.R.Rajesh, learned counsel appearing for the plaintiff and Sri.M.Dinesh, learned counsel appearing for the defendant. We have also gone through the pleadings and the materials on record. It is evident from the pleadings and the materials on record including the judges papers in F.A.O.No.332 of 2007 that the defendant was set ex-parte on 4.8.2001. Though he had filed I.A.No.1389 of 2001 to set aside the ex-parte decree, that application was initially dismissed for default. Though later I.A.No.1389 of 2001 was restored to file on terms, and I.A.No.1389 of 2001 was allowed on payment of Rs.2,500/- as costs, he did not pay the costs in time.
Instead, he filed I.A.No.428 of 2004 seeking enlargement of the time fixed for payment of costs. Since costs was not paid, I.A.No.1389 of 2001 was dismissed on 20.3.2004. The defendant did not challenge the said order in time. Instead, he filed I.A.No.581 of 2004, an application seeking restoration of I.A.No.1389 of 2001. I.A.No.581 of 2004 was dismissed as not maintainable. He thereupon filed W.P.(C) No.6494 of 2005 in this Court challenging the order dismissing I.A.No.581 of 2004. The said writ petition was dismissed by judgment delivered on 27.10.2006. He thereupon filed F.A.O.No.141 of 2007 in this Court challenging the order dismissing I.A.No.581 of 2004. He did not however file an appeal and challenge the order dismissing I.A.No.1389 of 2001, the application for setting aside the ex-parte decree. It was only when this defect was pointed out that he filed F.A.O.No.332 of 2007 challenging the order in I.A.No.1389 of 2001. By then more than 3 years had passed after I.A.No.1389 of 2001 was dismissed. Though the explanation offered by him for the delay was not satisfactory, the Division Bench of this Court heard the appeals on the merits and allowed the appeals subject to two conditions. The first being the payment of Rs.10,000/- as costs and the second being a condition requiring the defendant to furnish security for the entire decree debt to the satisfaction of the court below, within one month.
The non compliance with the second part of the direction has led to the instant appeal and the writ petition. Apart from producing a security bond, the defendant had not furnished the valuation certificate/encumbrance certificate or the original title deed along with the bond. The court below considered the bond and rejected it by its order dated 16.7.2008. Even as on today, the said order is not under challenge. What is under challenge in W.P.(C) No.24668 of 2010 is a latter order passed by the court below on the execution side reopening the execution petition for settling the sale proclamation and proceeding with the execution of the decree. From the conduct of the defendant and the attendant circumstances, we are satisfied that the defendant has not complied with the condition stipulated by this Court in the judgment delivered on 28.11.2007 in F.A.O.Nos.141 and 332 of 2007 that he should within one month, furnish security for the entire decree debt to the satisfaction of the court below. The valuation certificate is evidently one obtained months after. The bond produced by him was not in the prescribed form. The defendant had not along with the bond produced the document of title. He had also not produced the encumbrance certificate. In short there was no material before the court below to decide whether the security furnished is adequate or not. In such circumstances, as the order passed by the court below on 16.7.2008, whereby it held that the defendant has not complied with the direction issued by this Court to furnish security, is not under challenge and it has become final, we are of the opinion that the defendant cannot take exception to the steps taken by the court below on the execution side. As one of the conditions stipulated by this Court had not been satisfied and security had not been furnished within one month, the court below could not have, even if proper cause had been shown, enlarged the time limit stipulated by this Court. If for reasons beyond his control the defendant was not in a position to comply with the direction issued by this Court within the stipulated time limit, he should have moved this Court seeking enlargement of time. That has not been done.
We accordingly dismiss W.P.(C) No.24668 of 2010 and dispose of F.A.O.No.28 of 2009 with a direction to the court below to proceed with the execution petition pending before it.
P.N.RAVINDRAN, (JUDGE) P.B.SURESH KUMAR, vps (JUDGE)