IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 Mat.Appeal.No. 833 of 2008() ---------------------------- OP.80/2007 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): RESPONDENTS 2 & 2 -------------------------------- 1. C.K.KUTTAPPAN, CHERIVUPARAMBIL HOUSE, PALPUZHA KARA, MADAPPALLY.P.O, CHANGANACHERRY TALUK. 2. LEELA KUTTAPPAN, W/O.C.K.KUTTAPPAN, CHERIVUPARAMBIL HOUSE, PALPUZHA KARA, MADAPPALLY.P.O, CHANGANACHERRY TALUK. BY ADV. SRI.JOHN VARGHESE SRI.P.M.JOSEPH RESPONDENT(S): PETITIONER & IST RESPONDENT ------------------------------------------ 1. RANI RAMACHANDRAN, PAKKATHU HOUSE, KATTATHY KARA, ETTUMANOOR.P.O, KOTTAYAM. 2. C.K.JAYAPRAKASH, S/O.C.K.KUTTAPPAN, CHERIVUPARAMBIL HOUSE, PALPUZHA KARA, MADAPPALLY. PO, CHANGANACHERRY TALUK. ADV. SRI.A.L.GEORGE FOR R2 SRI.SURIN GEORGE IPE FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- Mat. Appeal No. 833 of 2008 ------------------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT Basant,J. There is a long story behind this Mat. Appeal. The wife/1st respondent herein had filed an application against her husband/2nd respondent and the appellants herein claiming return of money and gold ornaments. In that application of the three respondents i.e., the 2nd respondent herein and the two appellants herein were set ex parte. The 2nd respondent herein is the husband of the 1st respondent and the appellants are the parents of the 2nd respondent. An ex parte order was passed against the appellants and the 2nd respondent. They filed an application to set aside the ex parte order. In the meantime, steps for execution of the ex parte order were also taken by the 1st respondent herein. The appellants and the 2nd respondent came to this Court with W.P.(c) No.5431/08. A Mat. Appeal No. 833 of 2008 -: 2 :- Division Bench of this Court by judgment dated 20/2/08 directed the Family Court to defer the execution proceedings till orders are passed on the application to set aside the ex parte order and the petition for condonation of delay. The Family Court did ultimately condone the delay and set aside the ex parte order. Proceedings in execution continued. Though there was a direction to defer the same until the application to set aside the ex parte order and the petition for condonation of delay were disposed of, the Family Court, in all good intentions, it appears to us, attempted to get the dispute between the parties settled by making a reference for conciliation in the execution petition. While the appellants and the 2nd respondent asserted that the matter was settled on an agreement to pay an amount of Rs.25,000/-, the learned counsel for the wife/1st respondent asserts that there was no such settlement whatsoever. 2. Be that as it may, after setting aside the ex parte order, when the matter came up for consideration afresh, no counter statement was filed by the appellants herein or the 2nd respondent. They were again set ex parte order and the Family Mat. Appeal No. 833 of 2008 -: 3 :- Court proceeded to pass the impugned order directing payment of an amount of Rs.50,000/- along with interest at the rate of 9% per annum; a further amount of Rs.1,25,000/- with 9% interest per annum (or to return 15 sovereigns of gold ornaments) and further to pay costs of Rs.1,000/-. It is against that order that this appeal has been filed. 3. The learned counsel for the appellants contends that the appellants and the 2nd respondent had omitted to file a counter statement or take any further steps as they were under the impression that the matter was being settled in conciliation. The learned counsel for the 1st respondent vehemently controverts this assertion and submits that this assertion is nothing but an attempt to prolong and protract the proceedings. 4. Having considered all the relevant circumstances, we feel that appropriate directions can be issued and this appeal can be allowed subject to appropriate terms. Though not fully convinced about the reasons that prompted the appellants herein and the 2nd respondent not to file a counter statement or take part in the trial, we are satisfied that the interests of justice Mat. Appeal No. 833 of 2008 -: 4 :- demand that there is a considered order on merits on the disputes raised. The appellants and 2nd respondent must be put to appropriate terms and a further opportunity can be granted to them to contest the proceedings, raise all contentions and substantiate the same. 5. In the result: (a) This appeal is allowed subject to conditions. (b) The impugned order shall stand set aside and the Family Court shall dispose of O.P.No.80/07 after giving the appellants and the 2nd respondent a further opportunity to file objections, if any, and take part in the proceedings on condition that they deposit an amount of Rs.25,000/- before the Family Court within a period of 30 days from this date. (c) The parties shall appear before the Family Court on 4/5/09. If the amount of Rs.25,000/- is deposited as directed, the impugned order shall stand set aside and the Family Court shall dispose of O.P.No.80/07 afresh in accordance with law as expeditiously as possible – at any rate, within a period of four months from 4/5/09. Mat. Appeal No. 833 of 2008 -: 5 :- (d) If the deposit is not made as directed, the Family Court shall record that fact on 4/5/09 and thereupon the impugned order shall continue to remain in force. (e) If the amount is deposited as directed, the same shall be released to the 1st respondent without any obligation on her to return the same whatever be the final out come in the Original Petition. (f) Compliance shall be reported to this Court. R. BASANT (Judge) C.T. RAVIKUMAR (Judge) Nan/