IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 WP(C).No. 29372 OF 2008(S) -------------------------- OP.67/2006 OF FAMILY COURT, THODUPUZHA PETITIONER(S): --------------- 1. MANOHARAN.P.A, PUNNELIL HOUSE, PIRAVAM VILLAGE, REP. BY THE POWER OF ATTORNEY HOLDER RAJAPPAN, AGED 60 YEARS, S/O. PAPPUNNI, KADUKUTHIYANKAL HOUSE, PALAKUZHA VILLAGE, PALAKUZHA.P.O, KOOTHATTUKULAM, MUVATTUPUZHA TALUK. 2. THANKAMMA, W/O. AYYAPPAN, PUNNELIL HOUSE, PIRAVAM.P.O, PIRAVAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S): --------------- LAILAMANI.M.N, D/O. NEELAKANDAN, MARIYAPURATH HOUSE, KALIYAR KARA, VANNAPURAM VILLAGE, THODUPUZHA TALUK, REP. BY THE POWER OF ATTORNEY HOLDER AND FATHER SRI.NEELAKANDAN,AGED 60 MARIYAPURATH HOUSE, KALIYAR KARA, VANNAPURAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. THIS WRIT PETITION (CIVIL) HAVINGCOME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = W.P.(C) NO. 29372 OF 2008 = = = = = = = = = = = = = = = = DATED THIS, THE 14TH DAY OF OCTOBER, 2008. J U D G M E N T Raman, J. Petitioner challenges the order Ext.P3 passed by the Family Court, Thodupuzha, in I.A. Nos. 453/2007 & 454/2007 in O.P. 67/2006. 2. I.A. NO. 454/2007 was an application for restoration of O.P. 67/2006. Since there was some delay caused in filing the said application, I.A. 453/2007 was also moved for condoning such delay. O.P. 67/2006 was filed by the wife for return of share amount and gold ornaments, which happened to be dismissed for default. Later, the present applications were filed. The court below, after considering the materials on record, by Ext.P3 common order, condoned the delay and allowed restoration. Thus, the original petition stood restored to file so that both sides have an opportunity to contest the matter. 3. According to the counsel for the petitioner, the restoration application was signed by the party herself whereas the petition for condonation of delay and the supporting affidavit are signed by her Power WP(C) 29372/2008 :2: of Attorney Holder , who is none other than her father. 4. We have gone through the applications which are produced in this writ petition as Exts.P1 and P2 respectively. We find that the restoration application was filed by the petitioner in the main petition in the Embassy and dated 15th July, 2007 whereas the application for condonation of delay is signed by the Power of Attorney Holder. We have gone through the affidavit filed in support of the delay petition which would evidently show that the delay occurred mainly because of the reason attributable on the part of the Power of Attorney Holder. It is stated that though instructions were given to seek restoration, because of the ill-health of the Power of Attorney Holder, he could not file the same immediately which resulted in the delay. Thus, the circumstances under which the delay caused are satisfactorily explained in the affidavit. We find the proper person to explain the delay is the Power of Attorney Holder. Hence there is nothing wrong in the affidavit being filed by him. The restoration application was signed by the party herself, she being the person aggrieved by the order declaring her ex parte. Thus, we find no illegality in the restoration application and affidavit filed in support thereof being signed by the party herself and the affidavit filed along with the delay petition signed by the Power of Attorney Holder. WP(C) 29372/2008 :3: 5. Nextly, it was contended that Section 151 of the Code was invoked for seeking restoration of the matter. Placing reliance on a Single Bench decision of this Court in Velayudhan Nair v. Kerala K.Y. Kuries (P) Ltd. (1987(2) KLT 449) it is contended that when there are other provisions in the Code of Civil procedure, Section 151 ought not have been invoked. 6. We have gone through the decision and found that what is held in that decision is that in case there is a specific provision, the power under Section 151 of the Code can not be exercised to over-ride the said provision. In this case, it is not shown that application for restoration now filed is in any way barred by any of the other provisions contained in the Code of Civil Procedure. If so, the mere fact that the application for restoration is filed under Section 151 of the Code by itself is no reason to hold that the same is in any way illegal. After all, in a matrimonial dispute between the parties, when a petition for return of gold ornaments etc. is filed, it is for the court to consider whether the default was deliberate and if the court, on analysis of the materials on record, comes to the conclusion that the default is not deliberate and there is no willful negligence or laches on the part of the parties, it is always open to the court to consider such application favourably and condone the delay in filing the same. WP(C) 29372/2008 :4: In the circumstances, we do not propose to exercise the power under Article 227 of the Constitution of India. Dismissed. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-