IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 Mat.Appeal.No. 45 of 2007() --------------------------- AGAINST THE ORDER IN IA.2664/2005 IN OP.647/1998 of FAMILY COURT,THRISSUR .................... PETITIONER(S): PETITIONER. -------------------------- CHANDRAMATHI, W/O.THANDASSERY SUDHAKARAN THALIKULAM VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): RESPONDENTS. --------------------------- 1. SHIJI, D/O.KOTTUNGAL PADMASENEN, NATTIKA BEACH DESOM, CHAVAKKAD TALUK. 2. SUDHEESH, S/O.THANDASSERY SUDHAKARAN, KOPRAKKALAM DESOM, THALIKKULAM VILLAGE, CHAVAKKAD TALUK. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.45 of 2007 ---------------------------------------- Dated this the 28th day of August 2009 J U D G M E N T Basant,J The appellant is the mother-in-law of the claimant that is the 1st respondent. The 1st respondent filed an O.P claiming return of gold ornaments etc. from her husband/the 2nd respondent herein and her mother-in-law, the appellant herein. In that O.P, both respondents, that is the husband and his mother were served. They entered appearance also. They did not participate in the proceedings and an ex parte decree was passed on 28/02/2001. That decree became final. Long later, in 2005, when steps for execution was taken up, the appellant went before the Family Court and prayed that the ex parte order may be set aside after condoning the delay exceeding four years. The court below, on an evaluation of all the materials, came to the conclusion that there was inordinate delay exceeding four years in filing the application for condonation of delay. In these circumstances, the court below dismissed the application for setting aside the ex parte order. Of course,the court below taken Mat.Appeal No.45/07 2 note of the fact that no separate application for condonation of delay has been filed. 2. The learned counsel for the appellant submits that the appellant is a 78 year old woman. According to the learned counsel for the appellant, the delay in filing the appeal was not wilful or deliberate. Her son, the 1st respondent in the O.P will take necessary steps, it was assumed. He did not do the same and hence the delay occurred. 3. We are not satisfied that there is any sufficient reason to justify the challenge against the impugned order. The petition was hopelessly belated and no valid reason was shown to justify the prayer for condonation of delay. Even on merits, we note that the appellant, who had entered appearance through counsel had no justifiable reasons to suggest as to why she did not continue to contest the proceedings. In any view of the matter, the Family Court cannot be said to have committed any error or impropriety in passing the impugned order. 4. The learned counsel for the appellant submits that a lenient view may be taken and the appellant may be given a further opportunity. That prayer is stoutly opposed. But, in the course of discussions, the learned counsel for the respondent Mat.Appeal No.45/07 3 also accepts the suggestion which was also put to the parties by the Bench which dealt with the matter on 17/7/2007. If the entire decree amounts were deposited by the appellant, the claimant/1st respondent shall not raise any objections against the setting aside of the ex parte order, it is submitted. 5. We are, in these circumstances, satisfied that this appeal can be allowed subject to conditions as agreed by the learned counsel for the respondent. Though the appellant is not strictly entitled for such indulgence, we accept the stand taken by the parties and grant the appellant such a further opportunity. 6. In the result, a) This appeal is allowed subject to conditions. b) The impugned order shall stand set aside on condition that the appellant deposits the entire amount due under the decree before the Family Court within a period of sixty days from this date. c) O.P.No.647/98 shall be called before the Family Court on 29/10/2009. If the court below is satisfied that the above direction regarding deposit of the entire amount due under the decree till that date is complied with, the court below shall Mat.Appeal No.45/07 4 proceed to dispose of O.P.No.647/98 afresh, in accordance with law, as expeditiously as possible - at any rate, within a period of four months from 29/10/2009. If the amount is not deposited, the Family Court shall make record of that fact on 29/10/2009 and thereupon the impugned order shall continue to remain in force. d) If the amount is deposited by 28/10/2009 as directed, the court below shall retainn the same in a fixed deposit such that the principal amount along with interest accrued can be released to the successful party after fresh disposal of O.P.No.647/98. 7. There is no appearance for the 2nd respondent. It is made clear that the ex parte order against the 2nd respondent shall continue to remain in force. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr Mat.Appeal No.45/07 5 Mat.Appeal No.45/07 6 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009