IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 FAO.No. 174 of 2006() --------------------- I.A. 1650/06 & 1660/05 IN OS.114/2000 of FAMILY COURT,TRIVANDRUM .................... APPELLANT/PETITIONER: -------------------------------------- PRASANNAKUMARAN NAIR, THEKKEKKARA PUTHEN VEEDU, REP. BY HIS POWER OF ATTORNEY HOLDER SASIKALA, KIZHAKKE CHARUVILA PUTHEN VEEDU, POIKAMUKKU, ELAMBA, ATTINAL, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.A.RAJASEKHARAN NAIR RESPONDENT(S)/RESPONDENT: ------------------------------------------- PANKAJAKSHI AMMA, VILAYANNOOR VEEDU, ELAMBA, ATTINGAL, THIRUVANANTHAPURAM DISTRICT. ADV. SRI.M.BALAGOVINDAN SRI.M.R.SASITH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 174 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 10.3.2006 in I.A. No.1659 of 2005 and I.A. No.1660 of 2005 in O.S. No.114 of 2000, petitioner before the court below has come up in appeal. 2. An ex-parte decree was passed against the petitioner by the Family court, Thiruvananthapuram. That was put in execution. It is a maintenance decree. Petitioner would say that when he became aware of the passing of ex-parte decree, he sought to set aside the ex-parte decree by filing I.A. 3413 of 2004. It appears that that petition for setting aside the ex-parte decree was dismissed for default. Therefore the petitioner filed I.A 1659 of 2005 for restoration of the application filed for setting aside the ex-parte decree. He also filed an application to condone the delay in filing the application for restoration. Those petitions were also dismissed. Those orders are assailed in this appeal. 3. A reading of the order of the court below shows that execution petition was filed on 12.8.2002. The suit was decreed on 31.7.2000. He claims that he came to know about the decree only on FAO. 174/2006. 2 5.9.2004. It is understood from the records that the petition to set aside the decree came up for hearing on 4.11.2004, and on that day the defendant was directed to deposit one tenth of the amount decreed and the case was posted to 17.12.2004. That was not paid and then the case was posted to 15.2.2005. Ultimately since the amount was not paid and due to non- representation on the part of the appellant, that petition was dismissed. There was no representation also on his behalf. According to the petitioner, when he came to know of the dismissal of the application, he preferred the present application immediately. He would say that there is no wilful laches or default on his part. 4. It can be seen that I.A. 3413 of 2004, namely petition to set aside the ex-parte decree, had several postings. On none of the posting dates the petitioner had appeared before the court below. Ultimately that application was dismissed. It needs to be noted that in the present petition to condone the delay there is no whisper about the postings of I.A. 3413 of 2004. It is also found that the statement given in the affidavit that the application was filed on 29.9.2004 and was posted to 15.2.2005 is not correct. One must remember that he was directed to deposit one tenth of the decree amount. The reason given was that he thought that the case would be called before the court at Nedumangadu and he did not appear before the FAO. 174/2006. 3 court below at all. The same contention was taken before this court also. Learned counsel for the respondent submits that there could not have been such misapprehension and the present attempt is only to delay the proceedings. The court below is perfectly justified in coming to the conclusion that there is no bonafides in the petition filed by the appellant. There is no reason to take a different view. This appeal is without merit and the appeal is dismissed. There is no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.