IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 45 of 2007()
1. CHANDRAMATHI, W/O.THANDASSERY SUDHAKARAN
... Petitioner
Vs
1. SHIJI, D/O.KOTTUNGAL PADMASENEN,
... Respondent
2. SUDHEESH, S/O.THANDASSERY SUDHAKARAN,
For Petitioner :SRI.V.BINOY RAM
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :28/08/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
* * * * * * * * * * * * *
Mat.Appeal No.45 of 2007
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Dated this the 28th day of August 2009
J U D G M E N T
Basant,J
The appellant is the mother-in-law of the claimant that is
the 1st respondent. The 1st respondent filed an O.P claiming
return of gold ornaments etc. from her husband/the 2nd
respondent herein and her mother-in-law, the appellant herein.
In that O.P, both respondents, that is the husband and his
mother were served. They entered appearance also. They did
not participate in the proceedings and an ex parte decree was
passed on 28/02/2001. That decree became final. Long later, in
2005, when steps for execution was taken up, the appellant went
before the Family Court and prayed that the ex parte order may
be set aside after condoning the delay exceeding four years. The
court below, on an evaluation of all the materials, came to the
conclusion that there was inordinate delay exceeding four years
in filing the application for condonation of delay. In these
circumstances, the court below dismissed the application for
setting aside the ex parte order. Of course,the court below taken
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note of the fact that no separate application for condonation of
delay has been filed.
2. The learned counsel for the appellant submits that the
appellant is a 78 year old woman. According to the learned
counsel for the appellant, the delay in filing the appeal was not
wilful or deliberate. Her son, the 1st respondent in the O.P will
take necessary steps, it was assumed. He did not do the same
and hence the delay occurred.
3. We are not satisfied that there is any sufficient reason
to justify the challenge against the impugned order. The petition
was hopelessly belated and no valid reason was shown to justify
the prayer for condonation of delay. Even on merits, we note
that the appellant, who had entered appearance through counsel
had no justifiable reasons to suggest as to why she did not
continue to contest the proceedings. In any view of the matter,
the Family Court cannot be said to have committed any error or
impropriety in passing the impugned order.
4. The learned counsel for the appellant submits that a
lenient view may be taken and the appellant may be given a
further opportunity. That prayer is stoutly opposed. But, in the
course of discussions, the learned counsel for the respondent
Mat.Appeal No.45/07 3
also accepts the suggestion which was also put to the parties by
the Bench which dealt with the matter on 17/7/2007. If the
entire decree amounts were deposited by the appellant, the
claimant/1st respondent shall not raise any objections against the
setting aside of the ex parte order, it is submitted.
5. We are, in these circumstances, satisfied that this
appeal can be allowed subject to conditions as agreed by the
learned counsel for the respondent. Though the appellant is not
strictly entitled for such indulgence, we accept the stand taken
by the parties and grant the appellant such a further
opportunity.
6. In the result,
a) This appeal is allowed subject to conditions.
b) The impugned order shall stand set aside on condition
that the appellant deposits the entire amount due under the
decree before the Family Court within a period of sixty days from
this date.
c) O.P.No.647/98 shall be called before the Family Court
on 29/10/2009. If the court below is satisfied that the above
direction regarding deposit of the entire amount due under the
decree till that date is complied with, the court below shall
Mat.Appeal No.45/07 4
proceed to dispose of O.P.No.647/98 afresh, in accordance with
law, as expeditiously as possible – at any rate, within a period of
four months from 29/10/2009. If the amount is not deposited,
the Family Court shall make record of that fact on 29/10/2009
and thereupon the impugned order shall continue to remain in
force.
d) If the amount is deposited by 28/10/2009 as directed,
the court below shall retainn the same in a fixed deposit such
that the principal amount along with interest accrued can be
released to the successful party after fresh disposal of
O.P.No.647/98.
7. There is no appearance for the 2nd respondent. It is
made clear that the ex parte order against the 2nd respondent
shall continue to remain in force.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
jsr
Mat.Appeal No.45/07 5
Mat.Appeal No.45/07 6
R.BASANT & M.C.HARI RANI, JJ.
.No. of 200
ORDER/JUDGMENT
29/07/2009