IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 35071 of 2008(S) -------------------------- AGAINST THE ORDER IN EP 40/07 IN OP.368/2005 of FAMILY COURT, THIRUVALLA .................... PETITIONER(S): --------------- 1. NIJU, S/O.DIVAKARAN, CHARIVAKALAYIL VEEDU, OONNUKAL, CHENNERKARA MURI, CHENNERKARA VILLAGE, KOZHENCHERRY TALUK 2. SARASAMMA, CHARIVUKALAYIL VEEDU, OONNUKAL, CHENNERKARA MURI, CHENNERKARA VILLAGE KOZHENCHERRY TALUK. BY ADV. SRI.P.HARIDAS RESPONDENT(S): --------------- SUBHA, D/O.SUBHASHINI, PAZHAYAMANGALATHU VEEDU, KURAMBALA MURI KURAMBALA VILLAGE, ADOOR TALUK. ADV. SRI.V.PHILIP MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: Ext.P1 True copy of the judgment dated 5.8.2008 in W.P.(C) No.23109 of 2008 of this Honourable Court. Ext.P2: True copy of the common order in I.AS. 61/2008 and I.A. 62/2008 of the Family Court, Thiruvalla. RESPONDENT'S EXHIBITS: NIL R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- W.P.(C). NO. 35071 OF 2008 --------------------------------------------------------- Dated this the 7th day of April, 2009 JUDGMENT Basant, J. The respondents in O.P. No.368 of 2005 before the Family Court, Thiruvalla are the petitioners before us. That Original Petition was filed by the respondent herein claiming amounts from the petitioners herein. The petitioners are the husband and mother-in-law of the respondent. The petition was filed as early as in 2005. The petitioners were duly served. They did not appear before the Family Court. The Family Court at long last on 29.7.2006 proceeded to pass the ex parte order against them. Long later, I.A. Nos.61 and 62 of 2008 were filed before the Family Court to set aside the ex parte order after condoning the delay of 492 days in filing the application to set aside the ex parte order. As those applications were not disposed of expeditiously, the petitioners came to this Court and this Court vide judgment dated 5.8.2008 in W.P.(C) No.23109 of 2008 directed the Family Court to dispose of the matter expeditiously. Thereafter, those applications were taken up and the impugned order was passed. The learned Judge of the Family Court found that the reasons W.P.(C) NO. 35071/2008 2 urged are totally unsatisfactory. 2. It was the case of the petitioners that they had engaged a lawyer who had promised to appear. But, he had not appeared thereafter and they were kept in the dark about the progress of the case. The learned Judge of the Family Court was not prepared to accept this story. But, however, the learned Judge indulgently directed that the ex parte order be set aside and the petitioners be given an opportunity to contest the proceedings on condition that they deposit one-third of the amount due as per the decree on or before 29.11.2008. The amount was not deposited as directed and the applications stood dismissed. The petitioners have come before this Court to challenge the said order. 3. What is their grievance? The learned counsel for the petitioners submits that the Family Court erred in imposing the onerous condition that one-third of the amount must be deposited. In the circumstances of the case, we are satisfied that the learned Judge of the Family Court was eminently justified in imposing that condition. The learned Judge of the Family Court has taken the view that ex parte order can be set aside subject to conditions and in these circumstances, we do not want to discuss or consider the question whether the ex parte order really deserved to be set W.P.(C) NO. 35071/2008 3 aside or not. In any view of the matter,we are not persuaded to agree that the condition that one-third of the amount should be deposited can be held to be an unjustified or improper condition. The same does not warrant any interference. The challenge in this Writ Petition must fail. We are not satisfied that the extra ordinary jurisdiction under Article 226/227 of the Constitution of India should be invoked. 4. Counsel for the petitioners submits that the petitioners are willing to pay the entire amount and see the end of the dispute. There is a connected dispute regarding the claim for divorce by the husband which stands dismissed and against which an appeal is pending before this Court. Counsel for the petitioners submits that the petitioners are willing to pay the entire amount to purchase peace and the claim for divorce must also be settled along with that. 5. Learned counsel for the respondent submits that the respondent is not willing for a divorce and there is no settlement between the parties on that score. Learned counsel for the petitioners submits that the petitioners are, at any rate, willing to pay the amount and for that they want attachment over one item of property to be lifted so that they can pledge that property before the bank and raise the requisite amount for W.P.(C) NO. 35071/2008 4 discharging the liability as directed in the impugned order. That item of property stands not in the name of the petitioners, but in the name of the brother of the first petitioner. Learned counsel submits that appropriate direction may be issued so that the petitioners can pledge that item of property before the bank and raise the requisite amount for discharging the liability in O.P. No.368 of 2005. That item of property belonged originally to the father of the first petitioner and the said property subsequently came into the hands of the brother of the first petitioner, it is submitted. 6. The petitioners can certainly approach the Family Court and pray for appropriate directions which will enable the petitioners to pledge one item of property to raise the requisite amount for discharging the entire liability in O.P. No.368 of 2005. When a specific request is made before the Family Court, we have no reason to assume that the Family Court shall not consider such request sympathetically in accordance with law. If the decree can be satisfied in the manner suggested by the petitioners, we have no reason to think that the Family Court will not accept the suggestion. 7. In any view of the matter, the impugned order does not merit interference. This Writ Petition is accordingly dismissed. The petitioners were granted time till 29.11.2008 to pay the amount. In the W.P.(C) NO. 35071/2008 5 circumstances of the case, we extend the time granted for payment till 21.5.2009. Before that date, appropriate application, if any, can be filed by the petitioners before the Family Court to lift the attachment. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.P.(C) NO. 35071/2008 6 R. BASANT & C.T. RAVIKUMAR, JJ. W.P.(C) NO.35071/2008 JUDGMENT 7th April, 2009