IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 WP(C).No. 26997 of 2005(L) ---------------------------------- OP.58/2002 of FAMILY COURT, MANJERI. .................... PETITIONER: ---------------- T.K. ARUL JYOTHI, S/O.CHANDRAN, 34 YEARS, THENGATH KALATHIL, NEAR AV HIGH SCHOOL, PONNANI.P.O., EZHUVATHURITHI AMSOM DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI. V. RAJENDRAN SRI. A.C. SANKARA VARMA RESPONDENT: ----------------- SHYNI @ SACHU, D/O.GOVINDAN, 28 YEARS,"SOPANAM", EDAMANAPARAMBIL POLICE LINE, TEMPLE ROAD, THRIKKANDIYOOR.P.O., THRIKKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI. T. KRISHNAN UNNI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26997/2005 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER IN OP. 201/2001. EXT. P2 : COPY OF THE ORDER IN OP. 58/02 DATED 13.6.2002. EXT. P3 : COPY OF I.A. 808/2005 AND THE ORDER THEREON PASSED ON THE REVERSE SIDE OF THE SAME. EXT. P4 : COPY OF THE COUNTER AFFIDAVIT IN IA. 808/2005 IN OP. 58/2002. // True Copy // P.A. to Judge. smp KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ----------------------------------------- W.P.(C). No. 26997 OF 2005 ----------------------------------------- Dated this the 31st day of January, 2008. J U D G M E N T Kurian Joseph, J. Challenge is on Exhibit P3 order passed by the Family Court, Manjeri. The said order is passed on Exhibit P3 petition itself, which was filed for setting aside an ex parte order passed in Exhibit P2 Original Petition No.58/2002 in the matter of past maintenance. The court directed the petitioner to deposit the entire decree amount as a condition for setting aside the ex parte order. 2. We afraid, in the facts and circumstances of the case, the court may not be justified in asking for a pre-deposit of the decree amount, since the decree itself is sought to be set aside and still further the background of an amount of over Rs.2 lakhs already deposited in the Bank, as obtained in the Award of the Railway Claims Tribunal. Therefore, it is only in the interests of justice that the original petition is restored and the petitioner is given an opportunity to prosecute the matter on merits on other terms. W.P.(C). No. 26997/ 2005 2 Accordingly, we set aside the order in Exhibit P3 regarding deposit of entire decree amount with interest, allow Exhibit P3 petition and set aside ex parte decree and judgment in O.P.No. 58/2002. The parties are directed to appear before the Family Court on 03.03.2008 and the Family Court shall dispose of O.P.No.58/2002 within a period of another three months. Petitioner shall pay cost to the tune of Rs.3,000/- (Rupees three thousand only) to the respondent before the date of appearance and if not, the original petition will stand dismissed. KURIAN JOSEPH JUDGE HARUN-UL-RASHID JUDGE smp