IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 Mat.Appeal.No. 6 of 2009(A) -------------------------- AGAINST THE ORDER DATED 18/11/2008 IN IA.1722/2008 IN OP.26/2006 of FAMILY COURT,KOZHIKODE .................... PETITIONER(S): --------------- ABDUL RAZAK, S/O. GASSALI JAHEE, AGED 43, KUNCHITHODIKA HOUSE, THAZHEKKODE AMSOM AND DESOM OF KOZHIKODE TALUK, REP.BY POWER OF ATTORNEY HOLDER ABDUL SALAM S/O. GASSALI HAJEE, AGED 56, THOTTAKKAT HOUSE, THAZHEKKODE AMSOM AND DESOM OF BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA RESPONDENT(S): --------------- NAZEERA, AGED 33, D/O. ABDUL SALAM ELAGOOR HOUSE, KEEZHUPARAMBA AMSOM, AND DESOM OF KOZHIKODE TALUK AND DISTRICT. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ Mat.Appeal No.6 of 2009 ------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT BASANT, J. Appellant has suffered an exparte order directing him to pay a total amount of Rs.2,53,000/- to the respondent, his wife. That order was passed exparte. Direct service was not effected on the appellant admittedly. Notice was served by publication only. At the relevant time, the appellant was employed abroad. The amount directed to be paid represents the cash and gold ornaments allegedly retained by the appellant. 2. Long later, the appellant who was employed abroad came to India and filed an application to set aside the exparte order along with an application to condone the delay of 756 days. According to the appellant, he was unaware of the proceedings pending against him and the orders passed. By the impugned order, the applications for condonation of delay and for setting aside the exparte order were dismissed by the Family Court. 3. The appellant claims to be aggrieved by the impugned order. The learned counsel for the appellant submits that already an amount of Rs.1 lakh has been deposited towards the Mat.Appeal No.6 of 2009 2 amount ordered as per the order of this Court on 30.01.2009. 50% of the said amount has been permitted to be withdrawn by the claimant/wife. According to the learned counsel for the appellant, the appellant has a very good case to be advanced before the Family Court. An indulgent opportunity may be granted to the appellant subject to any appropriate conditions. 4. We have considered all the relevant circumstances. The fact remains that the appellant was not served personally and the appellant was not available in India at the relevant time. Though indications are certainly there that the appellant might have come to know of the pendency of the proceedings, we are satisfied that a lenient view can be taken and this appeal can be allowed subject to appropriate conditions granting the appellant an opportunity to raise his contentions and resist the claim. 5. This appeal is, in these circumstances, allowed subject to conditions. a) The impugned order shall stand set aside and the appellant shall be given an opportunity to raise his contentions and to get the matter disposed of afresh in accordance with law on the following terms and conditions: Mat.Appeal No.6 of 2009 3 i) The amount of Rs.1,00,000/- (Rupees One lakh only) in deposit shall forthwith be released to the respondent/petitioner; ii) For the entire balance amount due under the decree, the appellant shall furnish security to the satisfaction of the Family Court; iii) Both the conditions above shall be complied with on or before 30.04.2009; iv) The parties shall appear before the Family Court on 04.05.2009. If the conditions are complied with, the Family Court shall dispose of O.P.No.26 of 2006 afresh within a period of 3 months from that date. If the conditions are not complied with, the Family Court shall record that fact and thereupon the impugned order shall continue to remain in force. 6. It is made clear that whatever be the final outcome of the proceedings, the respondent/petitioner shall not be liable to return the amount of Rs.1 lakh released to her as per this order. 7. If deposit is made and security is furnished for the balance amount including interest and cost, the attachment effected shall be lifted by the Family Court by a separate order. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-