IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 Mat.Appeal.No. 54 of 2007() --------------------------- AGAINST THE ORDER DATED 07/11/2006 IN IA 2142/04,2143/04 & 2144/04 IN OP.317/1998 of FAMILY COURT,THIRUVANANTHAPURAM .................... APPELLANT/PETITIONER/RESPONDENT -------------------------------------------- K.K.KUTTAPPAN, AGED 61, RTD. ASSISTANT COMMISSIONER OF POLICE, 'AISWARYA', HOUSE NO.24/614, LITTLE NAGAR, CHAIKAMTHARA, PALAKKAD. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: RESPONDENT/PETITIONER ----------------------------------- 1. R.SURAKSHITHAKUMARI, D/O. KAMALAMMA, NALLUVILA, PADIPPURA PUTHEN VEEDU, VELLAR, KOVALAM P.O., THIRUVANANTHAPURAM. 2. N.D.MADHUKUMAR, S/O. KOCHUKANNAN, ROOM NO.5, HOTEL DWARAKA, HAWA BEACH, KOVALAM P.O., THIRUVANANTHAPURAM. BY ADV. SMT.K.KUSUMAM FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON 23/07/2008 DELIVERED THE FOLLOWING: ORDER IN I.A. NO. 311 OF 2007 IN MAT. APPEAL NO. 54 OF 2007. DISMISSED 23.7.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd./-(HARUN-UL-RASHID, JUDGE) KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- MAT. APPEAL NO. 54 OF 2007 ---------------------------------------------------------------- Dated this the 23rd day of July, 2008 JUDGMENT Harun-Ul-Rashid, J. The order passed by the Family Court, Thiruvananthapuram in I.A. Nos.2142 of 2004, 2143 of 2004 and 2144 of 2004 in O.P. No.317 of 1998 is under challenge in this appeal. The petitioner in the above applications is the second respondent in the Original Petition. The said applications were dismissed by the Family Court and hence, this appeal. 2. I.A. No.2142 of 2004 is an application filed for setting aside the ex parte decree passed in the Original Petition. I.A. No.2144 of 2004 is an application for condoning the delay in filing the application to set aside the ex parte decree and I.A. No.2143 of 2004 for restoration of O.P. No.317 of 1998. 3. The petitioner in O.P. No.317 of 1998 is the wife of Madhukumar/ the first respondent in the said Original Petition who is the brother of the appellant herein. The first respondent herein as petitioner Mat. Appeal No.54/2007 2 filed the above Original Petition for recovery of money, ornaments and other movables. By judgment dated 31.3.2000, the court below allowed the Original Petition and a decree was passed directing respondents 1 and 2 to pay back Rs.1,00,000/- and A schedule gold ornaments to the petitioner or its value amounting to Rs.80,109/- They were also directed to return C schedule movables or Rs.30,600/- being the value of the movables. The court below observed that inspite of receipt of notice, the second respondent did not appear before the court and he was declared ex parte on 31.3.2000. According to the second respondent, he is living alone in the address shown in the applications and that he did not receive any notice from the court below. He only received a notice from the Family Court, Thiruvalla in E.P. No.125 of 2001 and came to know about the proceedings only from the above notice and hence there happened to be a delay of 1511 days in filing the application to set aside the ex parte order. The first respondent herein filed objection to the applications. According to her, the appellant received notice and had acknowledged receipt of notice and that the present applications filed after a lapse of four years is without bona fides. She further contended that there are no sufficient reasons for condoning the delay and for setting aside the ex parte decree and prayed for dismissal of the applications. Mat. Appeal No.54/2007 3 4. It is submitted by the learned counsel appearing for the first respondent herein that her husband who is the first respondent in the original Petition filed I.A. No.692 of 2000 before the Family Court to set aside the ex parte decree. The same was dismissed for default. Again he filed another application, I.A. No.755 of 2003 for restoration of I.A. No.692 of 2000 which was allowed on condition of deposit of Rs.25,000/-. The said condition was not complied with and hence I.A. No.755 of 2003 was dismissed. Counsel also submitted that on coming to know about the attachment, the appellant herein and the husband of the first respondent executed a partition deed No.834/1999 dated 24.3.1999 allotting the property to other family members. According to counsel, this was done to defeat the execution of the decree passed in favour of the wife. 5. The appellant/petitioner in the applications was examined as PW.1 and the counter petitioner/first respondent herein was examined as RW.1. The petitioner stated that he was working as Assistant Commissioner of Police and was residing in his house at Palakkad. He denied the signature in the acknowledgement card. He admitted in cross- examination that before his retirement, he was residing in a rented house in Kanakanagar belonging to R.K.V. Company. This admission would indicate that he was residing in the address shown in the acknowledgement Mat. Appeal No.54/2007 4 card at least prior to his retirement. The court below observed that since notice was sent by registered post, there is a presumption that the official acts were performed properly and, therefore, it is for the petitioner to establish that the registered letter was not received by him. The court below also compared the similarity of the signature of the petitioner in the applications and the acknowledgement card. During examination, the petitioner was shown the signature affixed by him in the affidavit accompanying I.A. No.2143 of 2004. He denied the signature attached to the said application. The court below noticed that the first respondent in the Original Petition is the brother of the petitioner in the applications and that the first respondent had entered appearance through an Advocate and later remained ex parte. The court below, therefore, held that there was every possibility that his brother might have informed him about the filing of the case. The court below further held that there was no evidence to rebut the presumption of due service of notice and so it must be taken that notice in the original Petition was duly served on the petitioner/appellant. The inordinate delay in filing the application to set aside the ex parte decree is also not properly explained and hence the court below dismissed the applications. The submission that the very same counsel had appeared for both brothers before the Family Court also assumes relevance in this context and background. Mat. Appeal No.54/2007 5 6. We find that the reasons stated for dismissing the applications are valid and proper and no contrary view can be taken in the given circumstances. Therefore, we confirm the finding of the court below. The appeal is accordingly dismissed. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat. Appeal No.54/2007 6 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. MAT. APPEALNO.54/2007 JUDGMENT 23rd July, 2008 Mat. Appeal No.54/2007 7