IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 Mat.Appeal.No. 734 of 2011() ----------------------------------- AGAINST THE ORDER DATED 20/06/2011 IN IA 838/09,839/09 IN OP.309/2002 of FAMILY COURT,THRISSUR .................... APPELLANT/PETITIONER/RESPONDENT ---------------------------------------------- N.K.SURESH, S/O. NEDUMPARAMBIL KRISHNANKUTTY, KUZHUPPILLY VILLAGE, KARITHALA DESOM, PARAVUR. BY ADVS. SRI.JOHNSON JOSEPH KANADAN SRI.S.KRISHNAN THAMPI SRI.P.GIREESH KUMAR RESPONDENT(S): RESPONDENT/PETITIONER ----------------------------------------------------- K.M.MINI, AGED 29 YEARS, D/O. KALARICKAL MADHAVAN, VALAPPAD VILLAGE, VALAPPAD DESOM, VALAPPAD P.O., CHAVAKKAD TALUK. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ---------------------------------------- Mat. Appeal No.734 of 2011 ---------------------------------------- Dated this the 18th day of November, 2011 JUDGMENT Ravikumar, J. This Mat. Appeal is preferred against the orders dated 20.6.2011 passed by the Family Court, Thrissur in I.A.Nos.838/2009 and 839/2009 in O.P.309 of 2002. The said original petition was filed by the respondent herein for realisation of certain amount and for maintenance from the appellant. The appellant herein was set ex parte in that proceedings on 26.2.2004 and, later, an ex parte decree was passed on 31.7.2004 allowing the respondent herein, his former wife, to realise an amount of Rs.2,48,730/- and maintenance at the rate of Rs.1000/- per month from 10.2.2001 onwards. I.A.No.839 of 2009 was filed with the prayer to condone the delay of 1634 days in filing the application to set aside the ex parte decree passed in O.P.No.309 of 2002 and I.A.No.838 of 2009 was filed with a prayer to set aside the ex parte decree. I.A.No.839 of 2009 for condoning the delay was heard and dismissed and consequently I.A.No.838 of 2009 was also dismissed. Mat.A.No.734/2011 2 2. The contention of the appellant is that he came to know about the institution of the said original petition as also the decree passed thereon only when he received notice in E.P.No.24 of 2008 filed in O.P.No.309 of 2002. It is contended that he was in Gulf Countries. 3. The respondent herein filed a counter statement opposing the said interlocutory application and alleging that he is actually feigning ignorance about the institution of O.P.No.309 of 2002. Taking into account the rival contentions, the appellant was called upon to let in evidence. Accordingly, he was examined as PW1 and Annexures A1 to A5 were marked. Paragraphs 5 and 6 of the order in I.A.No.839 of 2009 would reveal that the appellant herein, who was examined as PW1, had admitted the fact that he had filed counter statement in O.P.No.309 of 2002 and it was during its pendency that he left for Gulf. It, in so far as relevant for the purpose of this case, reads thus:- “It is stated in the petition that the petitioner was not aware of the above O.P. and he came to know about the case only when he received notice in the execution petition. But his own evidence and circumstance in this case would only falsify the said contention of the petitioner. It may be noted that the petitioner herein filed counter statement in the above O.P. and he was contesting the case. PW1 the petitioner admitted the said fact. It was in the meanwhile he left for Gulf. Now he blames his counsel also.” Mat.A.No.734/2011 3 4. The appellant did not challenge the said findings based on his own evidence. Thus, it is evident that he was unscrupulously telling untruth for getting the delay condoned. Admittedly, the connubial relation between the appellant and the respondent came to an end through the order of the same Family Court in O.P.No.609 of 2001. In the said proceedings also, the petitioner was set ex parte and later, an ex parte decree for divorce was passed. The petitioner did not challenge the said order and virtually enjoyed the fruit of the said decree and later, he contracted a second marriage. Admittedly, the appellant received notice in E.P.No.24 of 2008 in O.P.No.309 of 2009 on 18.10.2008 and he entered appearance in E.P.No.24 of 2008 on 29.10.2008. Even then, he had chosen to file I.A.No.839 of 2009 for setting aside the ex parte decree only after four months. The Family Court after taking into account all such circumstances including the absence of satisfactory explanation for the long delay of 1634 days arrived at the conclusion that the attempt on the part of the petitioner was to delay the execution of the decree in O.P.No.309 of 2002. Therefore, I.A.No.839 of 2009 was dismissed. It was consequent to the dismissal of I.A.No.839 of 2009 that I.A.No.838 of 2009 was dismissed. Essentially, it is only the inevitable consequence of dismissal of I.A.No.839 of 2009. In the circumstances, we find no infirmity or Mat.A.No.734/2011 4 illegality in the order warranting exercise of appellate jurisdiction. This appeal is liable to fail and accordingly, it is dismissed. The learned counsel for the appellant contends that the appellant has no means to satisfy the decreetal amount. We are of the view that this is a matter to be taken up by the appellant in appropriate proceedings. Sd/- THOTTATHIL B. RADHAKRISHNAN Judge Sd/- C.T.RAVIKUMAR Judge TKS/18.11