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 15TH OCTOBER 2009 / 23RD ASWINA 1931 Mat.Appeal.No. 13 of 2005(A) ---------------------------- OP.1068/2002 of FAMILY COURT,ERNAKULAM .................... PETITIONER: APPELLANT ------------------------ MR.JOSEPH THOMAS, RESPONDENT, NEDUMTHAKIDY HOUSE, EDAKADATHY P.O., MUKKOTTUTHARA. BY ADV. SRI.SEBASTIAN DAVIS RESPONDENTS: --------------- 1. MRS.MARIAMMA JOSEPH, ADVOCATE, ANJILIMOOTTIL HOUSE, COURT JUNCTION, P.O.PONKUNNAM. 2. MR.BIJU JOSEPH, ADVOCATE, NEDUMTHAKIDY HOUSE, EDAKADATHY P.O., MUKKOTTUTHARA. ADV. SRI.T.M.RAMAN KARTHA THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO. 136 OF 2005 IN MAT APPEAL NO. 13/2005 DISMISSED. 15/10/2009 SD./-R. BASANT, JUDGE SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE ks. R.BASANT & M.C. HARI RANI,JJ ============================== MAT APPEAL NO. 13 OF 2005 ============================ DATED THIS THE 15TH DAY OF OCTOBER 2009 JUDGMENT Basant,J. This appeal is preferred by the second respondent in O.P.No.1068/2002 aggrieved by the ex parte judgment passed against him and his son making them jointly and severally liable to pay an amount of Rs.4,02,600/- along with interest and cost to the claimant i.e.the first respondent herein. 2. It was also directed that there shall be an order of attachment of property scheduled to I.A.No.548/2002 as security for the amount ordered. 3. Proceedings were initiated by the first respondent herein against her husband, second respondent and her father-in-law, the appellant herein. A brief reference to skeletal facts may be helpful. 4. Respondents 1 and 2 are Advocates and they admittedly Mat appeal 13/2005 -2- got married. According to the first respondent-claimant, money and articles of the claimant (first respondent herein) had been handed over at the time of marriage to the second respondent herein, her husband and the appellant herein - her father-in-law. 5. After marriage, the spouses lived together for sometime and a child was born in the wedlock. Thereafter, O.P.No.1067/2002 for declaration of nullity of marriage and the present O.P.No.1068/2002 for return of money and ornaments were filed. It is admitted that O.P.No.1067/2002 has already been allowed and declaration of nullity has now become final. 6. In the present O.P. No.1068/2002, the second respondent or the appellant herein did not file any objection. They did enter appearance. Though a number of opportunities were granted to file objections and to settle the dispute by settlement/conciliation, no objections were filed and no mediated/conciliated statement could be reached. It is in these circumstances that the impugned ex parte order has been passed Mat appeal 13/2005 -3- against the appellant herein as well as his son, the second respondent. 7. The second respondent filed an application to get the ex parte order set aside. That attempt did not succeed. The ex parte order in so far as it relates to the second respondent herein has thus become final. Nothing stands in the way against execution of the ex parte order against the second respondent now, concede both sides. 8. The appellant assails the impugned order. According to him, he did not get reasonable opportunity to contest the proceedings. He relies on Annexure-1 agreement entered into between all the three parties during the pendency of O.P.No.1068/2002 under which, settlement of dispute was attempted. It is his case that in view of Annexure-1 settlement, he did not feel the necessity to contest the proceedings. 9. The genuineness of the agreement is not disputed. That some payments were made in pursuance of the said agreement is Mat appeal 13/2005 -4- also not disputed. But according to the learned counsel for the claimant/ first respondent-wife, the claim raised in O.P.No.1068/2002 was not settled. That agreement did not work. The claim made in O.P.No.1068/2002 was not compromised or settled at all. Settlement were not reported to Court. The mere fact that an attempt to settle the dispute was made by entering into Annexure-1 agreement will not in any way defeat the claim made in O.P.No.1068/2002. This is the contention which the first respondent-wife urges. 10. After discussions at the Bar, there is agreement between the parties that the impugned order in so far as it relates to the appellant herein can be set aside and the court below can be directed to dispose of O.P.No.1068/2002 in so far as it relates to the claim against the appellant herein afresh in accordance with law. By the impugned judgment, the property scheduled to I.A.No.548/2002 has been attached. The said attachment shall continue to remain in force until further orders are passed by the Mat appeal 13/2005 -5- Family Court. 11. In the result, a) this appeal is allowed as agreed. b)The impugned order is set aside subject to the condition that the order of attachment of property scheduled to I.A.No.548/2002 shall continue. c)The parties are directed to appear before the Family Court on 2-11-2009. The Family Court shall proceed to dispose of O.P.No.1068/2002 on merits in so far as it relates to the claim against the appellant herein as expeditiously as possible, at any rate within a period of four months from 2-11-2009. d) It is clarified that this judgment shall not in any way affect the decree against the second respondent and shall fetter the rights of the first respondent to forthwith execute the decree in so far as it relates to the second respondent. Mat appeal 13/2005 -6- e) Counsel prays and it is accordingly directed that Annexure-1 shall be returned by the Registry forthwith to the learned counsel for the appellant. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.