IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 Mat.Appeal.No. 639 of 2009() ---------------------------- AGAINST THE ORDER DATED 01/04/2009 IN IA 347/2009 IA 2594/2008 IN OP.118/2008 of FAMILY COURT, MALAPPURAM .................... APPELLANT/PETITIONER/2ND RESPONDENT PETITIONER: -------------------------------------------------------------- KHADEEJA, W/O. SAIDALI, PATHANASSERY HOUSE, VATTAPARAMBA, CHAPPANGADI, MALAPPURAM DIST. BY ADV. SRI.BABU S. NAIR RESPONDENT/RESPONDENT/PETITIONER: ---------------------------------------------- SOUDA BEEGUM, D/O. MUHAMMEDALI MASTER, ARABI HOUSE, PATTARAKADAVU, MALAPPURAM DIST. ADV. SRI.K.SHIBILI NAHA THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- Mat.Appeal No.639 OF 2009 ----------------------------------------------------- DATED THIS THE 13th DAY OF NOVEMBER, 2009 J U D G M E N T Basant, J. The 2nd respondent before the Family Court - the mother-in- law, in an O.P. filed by the daughter-in-law, is the appellant before us. The respondent herein, the wife had filed the said O.P., O.P.No.118/08 against her husband and mother-in-law. The claim was for money being the value of gold ornaments. Both the husband and his mother, the appellant herein were set ex parte in the said O.P. An ex parte decree was passed. The appellant/mother-in-law promptly filed an application to set aside the ex parte order. That petition was returned with the direction to re-prsent the same along with copy of the impugned ex parte order. The appellant re-presented the petition, but out of time. An application was filed to condone the delay in re-presenting such application. 2. When the matter came up for hearing on 9.1.2009, for the reason that batta had not been paid, the application to set aside the ex parte decree, filed by the appellant was dismissed. Mat.A.No.639 /09 -2- The appellant filed an application for restoration, which also happened to be dismissed by the impugned order. 3. The learned counsel for the appellant submits that there was no wilful default or contumacious lapse on the part of the appellant. A lenient view may be taken, the impugned order may be set aside, the application to set aside the ex parte order may be allowed and the ex parte order may be set aside subject to any reasonable and appropriate conditions, it is prayed. 4. The learned counsel for the respondent opposes the application. But, notwithstanding the opposition, we are satisfied that subject to appropriate conditions, which shall ensure that the appellant is not invoking the right of appeal merely for the purpose of protraction of the proceedings, the appeal can be allowed and appropriate directions issued: 5. In the result: (a) this appeal is allowed subject to conditions. (b) the impugned order shall stand set aside, the application to set aside the ex parte order shall stand allowed after condoning the delay and the ex parte order passed in so far as it relates to Mat.A.No.639 /09 -3- the appellant shall stand set aside on condition that the appellant furnishes security to the satisfaction of the court below for the entire amount due under the impugned ex parte decree as on this date, within a period of 60 days from this date. 6. The parties shall appear before the Family Court on 18.1.2010. If security is not furnished by that date as directed, the Family Court shall make record of that fact and thereupon the impugned ex parte decree shall continue to remain in force. 7. It is further made clear that this judgment or the course adopted by this Court of setting aside the impugned ex parte order in so far as it relates to the appellant shall not in any way fetter the rights of the respondent/decree holder to proceed in execution against her husband, the first respondent in the O.P. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn Mat.A.No.639 /09 -4- R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- C.M.Application No.2301 of 2009 in Mat.Appeal No.639 OF 2009 ----------------------------------------------------- DATED THIS THE 15th DAY OF OCTOBER, 2009 O R D E R Basant, J. Heard. This petition is to condone the delay of 45 days in filing an appeal. The appeal in turn challenges an order dismissing an application for restoration of an application to set aside an ex parte order. 2. The application is opposed. After hearing both sides, we are satisfied that the delay can be condoned subject to appropriate conditions. 3. In the result: (a) this petition is allowed. (b) the delay shall stand condoned on condition that the appellant deposits before the court below or pays to the respondent an amount of Rs.1,500/- (Rupees One Thousand Five Hundred only) as costs within a period of 30 Mat.A.No.639 /09 -5- days. 4. Call after 30 days and earlier if cost is paid/deposited and voucher produced. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn