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 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 Mat.Appeal.No. 91 of 2007() --------------------------- AGAINST THE ORDER DATED 18/11/2006 IN IA.2195 & 2196/2006 IN OP.73/1999 of FAMILY COURT,THRISSUR .................... PETITIONERS/ APPELLANTS/RESPONDENTS -------------------------------------- 1. BEERANKUTTY, S/O. KUNJEEN, KIZHAKKETHIL HOUSE, VELIYAMKODE DESOM AND AMSOM, PONNANI TALUK. 2. PENKUMA, W/O. KUNJEEN, KIZHAKKETHIL HOUSE, VELIYAMKODE DESOM AND AMSOM, PONNANI TALUK. BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRIC.M.MOHAMMED IQUABAL RESPONDENT(S): PETITIONER -------------------------- RAMLATH, D/O. MOIDEENKOYA, MALIAKKAL HOUSE, AKALAD DESOM, PUNNAYOOR AMSOM, CHAVAKKAD TALUK. ADV. SRI.NAGARAJ NARAYANAN FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.A.S.SABU FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: I.A.NO.2458/08 & 2981/2008 IN MAT.APPEAL NO.91/2007 --------- Dismissed Sd/- P.R.RAMAN, JUDGE. 18/11/2008 Sd/- T.R.RAMACHANDRAN NAIR, JUDGE. True Copy P.S.TO JUDGE P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = MAT. APPEAL NO. 91 OF 2007 = = = = = = = = = = = = = = = = = = = DATED THIS, THE 18TH DAY OF NOVEMBER, 2008. J U D G M E N T Raman, J. Appellants are the respondents in O.P. 73/1999 on the file of the Family Court, Thrissur. They are respectively the husband and his mother. the original petition was filed by the wife for return of gold ornaments and patrimony. The appellants were declared exparte and a decree was passed for an amount of Rs. 2,39,824/- being the value of 75 sovereigns of gold ornaments and Rs. 15,500/- being the value of house-hold articles with interest at the rate of 12% thereon. A further amount of Rs. 75,000/- was also allowed with 12% interest being the patrimony. 2. Originally, besides the appellants, the father of the first appellant was also a respondent in the case. He died subsequently on 14.5.2000. Thereafter, the appellants were declared exparte for their non appearance and a decree as stated above was passed. The appellants subsequently filed I.A. Nos. 2195/2006 for setting aside the exparte order passed against them and I.A. 2196/2006 for condonation of the delay caused in filing the said application which were dismissed by the court below, against which the present appeal is filed. MAT.A. 91/2007 :2: 3. The attempt to settle the matter between the parties, however, failed. Hence we heard both sides and dispose of the matter on merits. 4. The reason put forth for setting aside the ex parte order is that the first appellant's father was conducting the case and after his death, they thought that they will get a fresh notice in the proceeding after impleading the other legal heirs; but it did not happen and only when a notice in the execution petition was received that they came to know about the ex party order. But the conduct of the parties did not inspire confidence in the mind of the court to accept the plea as such raised in the application. There is also other proceedings pending between the parties which were respectively for divorce and also for maintenance. It is true that the appellants did not seek to set aside the decree passed in those proceedings possibly because the appellants were not aggrieved by the decree for divorce or maintenance. As a matter of fact, they had been continuing to pay the maintenance even pursuant to the decree passed. The fact that they did not challenge the decree is not a reason to reject their contention , if it is otherwise true. 5. In this case, admittedly, the first appellant's father was in the party array and the first appellant was not in India as he was employed abroad. Therefore, there is nothing improbable in the contention of the appellants that the matter was prosecuted by the father on behalf of the parties. But then, being a matrimonial dispute, he cannot plead ignorance MAT.A. 91/2007 :3: of the proceeding and he, being aware of the case, would have very well enquired with the counsel as to the steps to be taken after the death of his father. At the same time, since this is an ex parte decree, for giving an opportunity to the appellants to contest the case, we think the appropriate course is to allow the application to set aside the ex parte order on terms. In the result, I.A. Nos.2195/2006 and 2196/2006 are allowed, the exparte decree passed in O.P. 73/1999 is set aside and the case is restored to file to be be disposed of on merits expeditiously, on condition that Rs. 1,00,000/- (Rupees One Lakh only) is deposited by the appellants before this Court within, a period of three weeks from today. On such deposit, the respondent is entitled to withdraw the same. The amount so deposited will be given due credit while passing final orders in O.P. 73/1999. The interim order of attachment of the property will continue till the disposal of O.P. 73/1999 by the court below. In case the appellants fail to deposit the amount as aforesaid, the appeal will stand dismissed. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-