IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 WP(C).No. 37657 of 2009(R) -------------------------- OP.233/2009 of FAMILY COURT, KOTTAYAM .................... PETITIONER : --------------- FRANCIS GEORGE, S/O.GEORGE DIAS, AGED 54 YEARS, RESIDING AT MYLAKKATU HOUSE, PAYYAPADY (P.O), PUTHUPALLY, KOTTAYAM DISTRICT. BY ADV. SRI.MVS.NAMPOOTHIRY SRI.R.VINU RAJ RESPONDENT: --------------- SMT.SOSAMMA @ SHAMKUTTY MATHEW, D/O.MATHAI, AGED 43 YEARS, RESIDING AT MYLAKKATTU HOUSE, PAYYAPPADY (P.O), PUTHUPALLY, KOTTAYAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(C) No.37657 of 2009 ------------------------------------- Dated this the 23rd day of December, 2009 JUDGMENT BASANT, J. This Writ Petition is filed by the petitioner, who has received Ext.P1 notice, under which an item of property belonging to him including a residential building is proclaimed for sale on 28.12.2009 in execution of an order passed in O.P.No.232 of 2009 filed by his wife against him. That is an exparte order. The petitioner on receipt of Ext.P1 has rushed to this Court with this petition under Article 227 of the Constitution of India for issue of appropriate directions quashing Ext.P1 notice declaring the same to be void and unenforcible. 2. Ext.P3 is the alleged exparte judgment. According to the petitioner, he is residing with his wife under the same roof and he had no knowledge that his wife has initiated such proceedings. According to him he is living harmoniously with his wife under the same roof and he is surprised by the said order. He has been set exparte in that case. He had no knowledge of the proceedings. He came to know of the proceedings only when Ext.P1 notice was issued. W.P(C) No.37657 of 2009 2 3. It is elementary that a person against whom an exparte order has been passed, must approach the Court which passed the order with an application to set aside the exparte order. Why has the petitioner not done the same and why has he rushed to this Court with this petition? The only explanation offered by the learned counsel for the petitioner is that a certified copy of Ext.P3 order has not been received by him. We have perused Ext.P3, which is a photocopy of the certified true copy. If the petitioner does not have a photocopy of the certified copy of the order, how did he get Ext.P3 photocopy of the certified copy. No satisfactory answers are forthcoming. In these circumstances, arguments of helpless advanced by the petitioner cannot be accepted. The petitioner must go before the Family Court and make an application to set aside the exparte order. He must, if his version is true, explain to the Court how such an order happened to be passed without his knowledge. Appropriate interim directions must be sought. We have no reason to assume that the Family Court shall not consider such application, if any filed, on merits and in accordance with law. W.P(C) No.37657 of 2009 3 4. At any rate, we are not satisfied that the extraordinary constitutional jurisdiction under Article 227 of the Constitution deserves to be invoked. 5. This Writ Petition is, in these circumstances, dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-