IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 639 of 2009()
1. KHADEEJA, W/O. SAIDALI,
... Petitioner
Vs
1. SOUDA BEEGUM, D/O. MUHAMMEDALI
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent :SRI.K.SHIBILI NAHA
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :13/11/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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Mat.Appeal No.639 OF 2009
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DATED THIS THE 13th DAY OF NOVEMBER, 2009
J U D G M E N T
Basant, J.
The 2nd respondent before the Family Court – the mother-in-
law, in an O.P. filed by the daughter-in-law, is the appellant
before us. The respondent herein, the wife had filed the said
O.P., O.P.No.118/08 against her husband and mother-in-law.
The claim was for money being the value of gold ornaments.
Both the husband and his mother, the appellant herein were set
ex parte in the said O.P. An ex parte decree was passed. The
appellant/mother-in-law promptly filed an application to set aside
the ex parte order. That petition was returned with the direction
to re-prsent the same along with copy of the impugned ex parte
order. The appellant re-presented the petition, but out of time.
An application was filed to condone the delay in re-presenting
such application.
2. When the matter came up for hearing on 9.1.2009, for
the reason that batta had not been paid, the application to set
aside the ex parte decree, filed by the appellant was dismissed.
Mat.A.No.639 /09 -2-
The appellant filed an application for restoration, which also
happened to be dismissed by the impugned order.
3. The learned counsel for the appellant submits that
there was no wilful default or contumacious lapse on the part of
the appellant. A lenient view may be taken, the impugned order
may be set aside, the application to set aside the ex parte order
may be allowed and the ex parte order may be set aside subject
to any reasonable and appropriate conditions, it is prayed.
4. The learned counsel for the respondent opposes the
application. But, notwithstanding the opposition, we are satisfied
that subject to appropriate conditions, which shall ensure that the
appellant is not invoking the right of appeal merely for the
purpose of protraction of the proceedings, the appeal can be
allowed and appropriate directions issued:
5. In the result:
(a) this appeal is allowed subject to conditions.
(b) the impugned order shall stand set aside, the
application to set aside the ex parte order shall
stand allowed after condoning the delay and the
ex parte order passed in so far as it relates to
Mat.A.No.639 /09 -3-
the appellant shall stand set aside on condition
that the appellant furnishes security to the
satisfaction of the court below for the entire
amount due under the impugned ex parte
decree as on this date, within a period of 60
days from this date.
6. The parties shall appear before the Family Court on
18.1.2010. If security is not furnished by that date as directed,
the Family Court shall make record of that fact and thereupon the
impugned ex parte decree shall continue to remain in force.
7. It is further made clear that this judgment or the
course adopted by this Court of setting aside the impugned ex
parte order in so far as it relates to the appellant shall not in any
way fetter the rights of the respondent/decree holder to proceed
in execution against her husband, the first respondent in the O.P.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn
Mat.A.No.639 /09 -4-
R.BASANT & M.C.HARI RANI, JJ.
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C.M.Application No.2301 of 2009
in
Mat.Appeal No.639 OF 2009
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DATED THIS THE 15th DAY OF OCTOBER, 2009
O R D E R
Basant, J.
Heard. This petition is to condone the delay of 45 days in
filing an appeal. The appeal in turn challenges an order
dismissing an application for restoration of an application to set
aside an ex parte order.
2. The application is opposed. After hearing both sides,
we are satisfied that the delay can be condoned subject to
appropriate conditions.
3. In the result:
(a) this petition is allowed.
(b) the delay shall stand condoned on condition
that the appellant deposits before the court
below or pays to the respondent an amount of
Rs.1,500/- (Rupees One Thousand Five
Hundred only) as costs within a period of 30
Mat.A.No.639 /09 -5-
days.
4. Call after 30 days and earlier if cost is paid/deposited
and voucher produced.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn