IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 FAO.No. 178 of 2006() --------------------- AGAINST THE ORDER DATED 27/01/2006 IN IA.1737/2005 IN OS.56/2000 of SUB COURT, TIRUR .................... APPELLANT/PETITIONER/3RD DEFENDANT --------------------------------------------------- SAMEERA, D/O.SAIDU, POTTASSOLA HOUSE, ANANTHAVOOR AMSOM, KAZHUTHAKKARA DESOM, TIRUR TALUK. BY ADV. SRI.K.RAMACHANDRAN SRI.K.MOHAMMED FAISAL NAHA RESPONDENTS: ------------- 1. ABBAS, S/O.CHERAPOLIKKAL KUNHIPPOKKAR, P.O.KALPAKANCHERY, TIRUR TALUK, MALAPPURAM DISTRICT. 2. SAIDU, S/O.POTTASOLA MUHAMMED, ANANTHAVOOR AMSOM, KAZHUTHAKKARA DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 3. ZEENATH, D/O.POTTASSOLA MOHAMMED, DO. DO. 4. RAHMATH, D/O.POTTASSOLA MOHAMMED, DO. DO. (MINOR). 5. FATHIMATH SUHARA, DO. DO. (MINOR). 6. MOHAMMED RAFEEQUE, S/O.POTTASOLLA MOHAMMED (MINOR) (R4 TO R6 REPRESENTED BY THEIR GUARDIAN & MOTHER 7TH RESPONDENT). 7. NABEESA, D/O.PUTHENPEEDIYEKKAL, ISMALU HAJI, DO. DO. BY ADV. SMT.V.P.SEEMANDINI (SR.) FOR R1 SMT.S.KARTHIKA FOR R1, SMT.K.P.GEETHA MANI FOR R1 SMT.T.B.REMANI FOR R1 SRI.SELJUM P.EMMANNUEL FOR R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.178 of 2006 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of June , 2008. JUDGMENT Ramachandran Nair, J. Aggrieved by the rejection of an application filed under Order IX Rule 13 C.P.C. to set aside the ex-parte decree passed against the appellant, this appeal is filed. 2. The whole case of the appellant rests upon the argument that when the suit was instituted, she was a minor. She was arrayed as defendant No.3 in the suit. She was represented by her mother who was appointed as guardian, but the mother failed to appear and defend the suit, even though a written statement was filed. 3. The court below found that after the ex-parte decree was passed on 11.7.2003, the mother who was defendant No.7, filed I.A.No.1465/2003 to set aside the ex-parte decree. She filed the above application on her behalf and on behalf of the minor defendants 3 to 6 including the appellant herein. Even though it was allowed on condition of deposit of Rs.25,000/- within a time frame, as the deposit was not made, that application stood dismissed. The court below was of the view that the appellant was only adopting FAO 178/2006 -2- delaying tactics and no sufficient cause has been shown. 4. We heard Shri K. Ramachandran, learned counsel for the appellant and Smt.Karthika, learned counsel for the respondents. Learned counsel for the appellant vehemently contended that the view taken by the court below is not correct and an opportunity ought to have been granted to the appellant to defend the suit. It is further pointed out that the property which is being proceeded against in execution belongs to the appellant and other minor children as per a registered gift deed dated 17.2.2000 executed by the father. It is submitted that there was no proper representation by the mother on her behalf which resulted in the ex-parte decree being passed. 5. Learned counsel for the respondents pointed out that the mother herself had been defending the suit and had filed an earlier application for setting aside the ex-parte decree on her behalf and on behalf of the minor children. 6. We find no ground to interfere with the order passed by the court below, in view of the facts noticed already. The mother was defending the suit on her behalf and on behalf of the minor children. She herself had filed I.A.No.1465/2003 for her behalf and on behalf of the minor children to set aside the ex-parte decree. But on failure to comply with the conditional order passed by the court below, that application was dismissed. Only FAO 178/2006 -3- subsequently thereafter the present application is filed by the appellant who was a minor at the time of filing of the suit. 7. There is no allegation by the appellant that the mother was acting against the interest of the minors. In view of the above, the court below was right in dismissing the application. We find no ground to interfere with the order impugned and the appeal is dismissed. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/