IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 Mat.Appeal.No. 643 of 2008(B) ------------------------------------------- (O.S. NO.240/2003 OF THE FAMILY COURT, KOLLAM) .......... PETITIONER/DEFENDANT: -------------------------------------- 1. SUJITHA KUMARI, MAHESH NIVAS, *(DIED) ULIYAZHARATHU VILLAGE, POUDIKONAM, THIRUVANANTHAPURAM. *ADDL. APPELLANTS 2 TO 5 IMPLEADED: 2. MAHESWARAN NAIR, S/O. LATE P.K. BHASKARAN NAIR, MAHESH NIVAS, ULIYAZHARATHU VILLAGE, POUDIKONAM, THIRUVANANTHAPURAM. 3. MANESH.M.S, S/O. LATE SUJITHA KUMARI, MAHESH NIVAS, ULIYAZHARATHU VILLAGE, POUDIKONAM, THIRUVANANTHAPURAM. 4. MAHESH.M.S, S/O. LATE SUJITHA KUMARI, MAHESH NIVAS, ULIYAZHARATHU VILLAGE, POUDIKONA, THIRUVANANTHAPURAM. 5. ANJU.M.S, D/O. LATE SUJITHA KUMARI, MAHESH NIVAS, ULIYAZHARATHU VILLAGE, POUDIKONAM, THIRUVANANTHAPURAM. *ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 04/12/2009 IN I.A. 3586/09. BY ADV. MR.B.MOHANLAL. MAT. APPEAL NO.643/2008-B: RESPONDENTS/PLAINTIFFS: ------------------------------------------ 1. MEENAKSHI AMMA, KARUNALAYAM S-8, SANKAR NAGAR, KOLLAM, FROM VADHYAR VEEDU, ASRAMTHU CHERRY, KOLLAM (DIED). 2. SANTHAMMA, S/O.KARUNAKARAN NAIR, KARUNALAYAM, S-8, SANKAR NAGAR, CHINNAKKADA, KOLLAM. R2 BY ADVS. MR.VAKKOM N.VIJAYAN, MR. RENJU.V. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- C.M.Application No.2011 OF 2008 & Mat.Appeal No.643 OF 2008 ----------------------------------------------------- DATED THIS THE 17th DAY OF DECEMBER, 2009 O R D E R/J U D G M E N T Basant, J. This petition is to condone the delay of 899 days in filing an appeal. The appeal in turn is directed against the judgment in O.S.No.240/03. The plaintiff in that suit was a woman aged 89 years and the defendant therein was her daughter, i.e., the appellant herein. That suit was decreed ex parte by the impugned order dated 21.1.2006. Maintenance was directed to be paid at the rate of Rs.600/- per mensem from 1.4.2001. The appellant who suffered the ex parte order did not take any steps to get the ex parte order set aside. On 23.11.2006, the mother of the appellant, i.e., the plaintiff before the court below, expired. 2nd respondent in this appeal is the sister of the appellant who claims that as per a will executed by the deceased plaintiff, she is entitled for the amounts due under the impugned ex parte decree. The 2nd respondent herein initiated steps in execution for recovery of the amounts. At that stage, the appellant woke up Mat.A.No.643/08 -2- from her slumber and realised the need to challenge the ex parte decree. Significantly, no attempt was made to get the ex parte order set aside, even now. During the pendency of this appeal, the appellant died and her legal heirs – husband and children have come on record as supplemental appellants 2 to 5. There is a delay of 899 days in filing the appeal. It is prayed that a lenient view may be taken and the delay may be condoned. 2. The application is stoutly opposed by the 2nd respondent. It is submitted that there is absolutely no justification in the prayer for condonation of delay. The ex parte order was passed on 21.1.2006. The first respondent herein, i.e., the plaintiff before the court below expired on 23.11.2006. No steps whatsoever were taken to get the ex parte order set aside till the date of death of the plaintiff/first respondent or till 1.9.2008, on which date this Mat.Appeal was filed. In these circumstances, it is prayed that the prayer for condonation of delay may be dismissed. 3. The learned counsel for the appellant wanted the matter to be referred to the Mediator for settlement. On a couple of occasions, the case has been posted for reporting settlement, Mat.A.No.643/08 -3- but the parties have not appeared together for settlement/reference to the Mediator, so far. Today also, the additional 2nd appellant is present before Court, but, the 2nd respondent is not. In these circumstances, we are satisfied that there is absolutely no necessity to wait for a negotiated and mediated settlement before taking up this petition for consideration on merits. Arguments were heard. 4. The learned counsel for the appellant submits that the delay occurred on account of reasons beyond the control of the appellant and the additional appellants. The original appellant was sick and was laid up. The mother of the appellant, the plaintiff, in the suit had expired on 23.11.2006. It is the 2nd respondent who is now staking a claim under the impugned decree on the strength of an alleged will executed in her favour. That will is not justified at all. The same cannot be accepted. The will cannot confer rights on the 2nd respondent to claim any amounts under the impugned decree. In these circumstances, the delay may be condoned and the appeal may be admitted, contends the learned counsel for the appellant. 5. The learned counsel for the 2nd respondent on the Mat.A.No.643/08 -4- contrary contends that the will is perfectly valid and justified and at any rate the validity of the will is not a relevant input at all in this application for condonation of delay. The validity of the will can be challenged and is actually challenged by initiating proceedings before the court below. If the appellant has a case that the 2nd respondent is not entitled to claim the benefit of the decree on the strength of the will executed that is a contention to be raised in execution and that cannot at any rate justify the plea for condonation of delay. In these circumstances, this petition may be dismissed, contends the learned counsel for the 2nd respondent. 6. We have considered all the relevant inputs. We note that the impugned decree is an ex parte decree. No attempts have been made to get the ex parte order set aside. No valid reasons are shown to exist as to why the impugned ex parte decree was not sought to be set aside during the life time of the original plaintiff, the first respondent herein or during the life time of the original first appellant. In the total absence of any pleas raised or evidence adduced, the challenge on merits against the impugned judgment and decree is also found to be of without Mat.A.No.643/08 -5- any merit or substance. At any rate, we are not persuaded to agree that the long and inordinate delay of 899 days deserves to be condoned. 7. In the result: (a) this petition for condonation of delay is dismissed. (b) Consequently, this Mat.Appeal shall stand rejected as barred by limitation. (c) We may,however, hasten to observe that we have not intended to consider the rights of the 2nd respondent to claim the benefits of the decree on the strength of the will. That contention will have to be considered by the court below in execution proceedings before the court below or in appropriate other proceedings that are pending or may be initiated. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn Mat.A.No.643/08 -6- R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- I.A.No.3586 OF 2009 & Mat.Appeal No.643 OF 2008 ----------------------------------------------------- DATED THIS THE 4th DAY OF DECEMBER, 2009 O R D E R Basant, J. I.A.No.3586/09 The original appellant is dead. The petitioners are the legal heirs of the deceased appellant. They seek impleadment as the legal heirs of the deceased. No objections raised. Petition allowed. Petitioners are impleaded as supplemental appellants 2 to 5. Mat.A.No.643/08 2. I.A.No.3586/09 has been allowed. Supplemental appellants 2 to 5 have been impleaded. First respondent is reported dead. All steps are now complete. 3. Both sides agree that the parties can be referred to the Mediator. Supplemental appellant No.2 and respondent No.2 shall appear in person before this Court for mediation on 17.12.2009. After verifying their presence, the parties shall be Mat.A.No.643/08 -7- referred to the Mediator. Inform the Nodal Officer, who shall make the services of a Mediator available to the parties on that date. 4. The question of condonation of delay shall be considered after ascertaining the results of the attempt for mediation. 5. Call on 17.12.2009. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn