IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 Mat.Appeal.No. 352 of 2011() ------------------------------------- (Against the order dated 20.3.2010 in I.A.Nos.83/2010 and 83/2010 in O.P.No.229/08 of the Family Court, Kottayam, at Ettumanoor) APPELLANTS (S):PETITIONERS: --------------------------------------------- 1. MURUKARAJ, S/O.RAMASWAMI ACHARI, AGED 44 YEARS, RAMNIVAS VEEDU, MANNALAM PO, HARIPPAD VILLAGE ALAPPUZHA DISTRICT. 2. RAJAMMA,W/O.RAMASWAMI ACHARI, RAMNIVAS VEEDU,AGED 80 YEARS MANNALAM PO, HARIPPAD VILLAGE,ALAPPUZHA DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): ------------------------ SUMALATHA, AMMANKOVIL VEEDU FATHIMAPURAM PO, THRIKODITHANAM VILLAGE CHENGANACHERRY, PIN-683626. BY ADV. SRI.PHILIP T.VARGHESE THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 20/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ Mat.Appeal No.352 of 2011 ---------------------------------------------- Dated, this the 20th day of June, 2011 J U D G M E N T K.M.Joseph, J. Appellants call in question the orders passed in I.A.No.82/2010 and I.A.No.83/2010 in O.P.No.229/2008 on the file of the Family Court, Kottayam at Ettumanoor. Appellants are respondents in OP No.229/2008 filed by the respondent. Respondent is the wife of the Ist appellant and daughter-in-law of the 2nd appellant. 2. The Original Petition was filed for return of gold ornaments or its value. The same was decreed exparte. Appellants filed I.A.No.82/2010 to set aside the exparte decree and I.A.No.83/2010 to condone the delay of 430 days. I.A.No.83/2010 was dismissed noting that there is no evidence adduced and the delay of 430 days is not properly explained. I.A.No.82/2010 was dismissed stating appellant absent, no evidence. According to the appellants, their absence was neither deliberate nor willful. It is stated that the Ist appellant is a chronic patient and the 2nd appellant is aged about 80 years. Appellants Mat.Appeal No.352/2011 -2- have also a case that, in fact, in the year 2007 whatever movables including gold ornaments belonging to the respondent which were with the appellants were handed over to the respondent and to that effect there is an endorsement in the records in the office of the 'Thattan Community' at Harippad. In short, the case of the appellants is that they have a good case on merits and they pray for an opportunity for an adjudicated decision. 3. Learned counsel for the respondent, on the other hand, would point out that there is no merit in the case. He would point out that the matter is pending for about three years. Execution Petition was filed and property was brought to sale. 4. Having heard the learned counsel for the parties, we feel that, notwithstanding that there is lack of diligence on the part of the appellants, we should afford them an opportunity for adjudication in the matter. We have already directed payment of Rs.5,000/- in all by way of litigation expenses and costs while condoning the delay. Having regard to all aspects, we allow the appeal, set aside the impugned orders and direct that I.A.No.82/2010 and I.A.No.83/2010 will stand allowed on condition that the appellants will pay a further sum of Rs.3,000/- (Three Mat.Appeal No.352/2011 -3- thousand) as costs to the respondent by depositing the same in the Family Court, Kottayam at Ettumanoor within a period of ten days from today. Upon deposit, it will be open to the respondent to withdraw the same. We further make it conditional upon the appellants depositing the documents of the attached property in Court also within the same period. We make it clear that the attachment will continue. We further direct that if the appellants comply with the conditions as aforesaid, the Family Court, Kottayam at Ettumanoor will take up O.P.No.229/2008 and dispose of the same on merits finally within a period of three months from the date on which compliance of the conditions is reported to it. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS