IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 Mat.Appeal.No. 518 of 2009() ------------------------------------------ I.A.98/2009 IN OP.525/2008 AND C.M.P.32/2009 IN M.C. NO.471/2008 OF FAMILY COURT, MALAPPURAM .................... APPELLANTS/RESPONDENTS: --------------------------------------------- 1. THAYYIL MUHAMMED BUKHARI, S/O. SAIDALAVI HAJI, THAYYIL HOUSE, ATHAVANAD AMSOM DESOM, TIRUR TALUK. 2. THAYYIL SAIDALAVI HAJI, DO.. DO... BY ADV. SRI.SAJU.S.A RESPONDENT/PETITIONER: ----------------------------------------- SAJEERA P., D/O. P. MAHAMOOD, GREEN MAHAL, KUTTIPPURAM, TIRUR. BY ADV. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY SRI.N.R CHANDRASEKHARAN FOR MEDIATOR. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. R.BASANT & M.L.JOSEPH FRANCIS, JJ ........................................... MAT.APPEAL .NO. 518 OF 2009 ............................................ DATED THIS THE 20TH DAY OF SEPTEMBER, 2010 JUDGMENT This appeal is directed against the condition imposed by the court below to set aside an exparte order directing payment of amounts by the appellants to the respondent who is wife of the first appellant and daughter in law of the second appellant. The court below, dissatisfied with the conduct of the appellants, on a date to which the case was listed for trial, set aside the impugned order subject to the condition that appellants must deposit before the court below 10% of the amount due before a stipulated date. 2. The learned counsel for the appellants submits that the condition imposed is excessive. Appropriate modification of conditions may be insisted, submits the learned counsel. 3. We have heard both counsel. We are satisfied that this appeal can be allowed and the impugned exparte order can be ordered to be set aside subject to appropriate terms and conditions. 4. In the result, Ma 518/2009 2 a) This appeal is allowed, subject to conditions. b) This appeal shall stand allowed, the impugned order shall stand set aside and the exparte order passed in O.P.525 of 2008 shall stand set aside subject to the following terms and conditions. i) The appellants shall deposit an amount of Rs.10,000/- as cost payable to the respondent. ii)The appellants shall further deposit an amount of Rs.5,00,000/- (including an amount of Rs.1,00,000/- which was ordered to be deposited as per the order dated 6.7.2009 by us) before the court below on or before 11.10.2010. iii)The appellants offer security for the entire balance amount due under the impugned exparte decree to the satisfaction of the Family Court within a period of sixty days from this date. 5. If the amounts are deposited, the amount of Rs.10,000/- under clause (i) shall forthwith be released to the respondent. The balance amount shall be retained in a Fixed Deposit with any Nationalised Bank such that the principal amount along with interest due can be ordered to be released to the successful party after disposal of the Ma 518/2009 3 appeal. 6. Call O.P.525 of 2008 before Family Court on 22.11.2010. If the conditions are complied with, court below shall dispose of the said O.P afresh within a period of three months from that date. If the conditions are not complied with, court below shall record that fact on 22.11.2010 and thereupon the impugned exparte order shall revive and can be executed by the respondent. R.BASANT, J JUDGE M.L.JOSEPH FRANCIS, JUDGE lgk