IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINTH DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL REVISION PETITION No. 5694 OF 2007 BETWEEN: Smt Katari Rama Devi …PETITIONER AND Katari Suryanarayana Raju and another …RESPONDENTS CIVIL REVISION PETITION No. 1294 OF 2008 BETWEEN: Smt Katari Rama Devi …PETITIONER AND Katari Suryanarayana Raju and another …RESPONDENTS The Court made the following: THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION Nos. 5694 OF 2007 AND 1294 OF 2008 COMMON ORDER: The two Civil Revision Petitions arise out of the orders passed in Guardian O.P.No.200 of 2005 on the file of the Family Court, Visakhapatnam. 2. The petitioner is the mother of the minor children Katari Surya Chandramouli and Katari Naveen Chandra Varma. The respondents herein have filed an application for custody of the minor children from the custody of the petitioner, who is their mother, on the ground that she has neglected them to take care of the minor children. 3. It appears that an exparte decree was passed on 09-01-2007 and thereafter, in pursuance of the exparte decree, E.P.No.9 of 2007 was filed to punish the revision petitioner. To set aside the exparte decree, an application was filed and as there was a delay, I.A.No.708 of 2007 was filed to condone the delay of 293 days in making the application for setting aside the exparte decree, that petition was dismissed and aggrieved by the said order, C.R.P.No.1294 of 2008 was filed. In the Execution Petition, warrant was issued under Order XXI Rule 38 of Civil Procedure Code (for short “CPC”) against the petitioner herein to produce the minor children for the purpose of handing over them to the decree holders. Aggrieved by the said order, C.R.P.No.5694 of 2007 is filed. 4. The points that arise for consideration are: 1) Whether the order of the lower Court in dismissing the application to condone the delay to set aside the exparte decree is valid? 2) Whether the order of the lower Court in issuing warrant against the petitioner is legal and sustainable? 5. POINTS: Evidently, in cases of this nature, the strict principle of explanation of every day delay in filing an application under Section 5 of Limitation Act does not arise. Evidently, the petitioner is the mother of the minor children and unless and until it is proved to the satisfaction of the Court that the conduct of the mother is against the interest of the minor children and after making an enquiry only, the minors can be given custody to others. Without hearing the mother, any decree passed for the purpose of dealing with the minor children, is not fair. The order of the lower Court shows that every day delay is not explained by the petitioner and therefore, it has to be dismissed. Evidently, the respondents did not file any counter opposing the application. In all fairness interest of justice requires that the mother should have been given an opportunity to explain her stand before she is directed to hand over her children to the grandfather and paternal uncle. Such harsh orders cannot be passed, particularly in matters concerning the family and more so, when the mother is involved with reference to the custody of her children. It is not a case wherein husband is seeking custody of the children from the mother. In fact, in order to test the bona fides of the decree holders, on 25-08-2010 this Court has passed the following order: “Sri K.Suryanarayana Raju, the first respondent herein, filed an affidavit stating that he is getting a monthly pension of Rs.28,000/- to Rs.30,000/- and that he is ready to assign five (05) acres of land standing in the name of his eldest son i.e., the father of the minor children, in the name of the minor children and that he is interested to look after the children. The petitioner herein who is present before this Court today also filed an affidavit stating that she is earning a salary of Rs.4,000/- per month and also she is doing tailoring and embroidery work and thus earning a total sum of Rs.8,000/- to Rs.10,000/- per month and is in a position to take of her children. In the circumstances, Sri K.Suryanarayana Raju, the first respondent herein, is directed to file the affidavits of his wife and other children to clarify that they have no objection for transferring five acres of land in the name of the minors. Sri K.Suryanarayana Raju, the first respondent herein, is further directed to obtain fixed deposits of Rs.25,000/- each in the name of both the minors showing the Judge, Family Court, Visakhapatnam, as temporary guardian and to produce those Fixed Deposits before this Court on 20th September, 2010. List the matter on 20th September, 2010, at 2:15 P.M”. 6. It is represented by the counsel for the petitioner that the said order has not been complied by the decree holders. Therefore, the bona fides and the interest of the decree holders are also under cloud. Therefore, in view of the above circumstances, making any order exparte directing the mother to hand over the children to others is not valid and she shall be given an opportunity to put forth her claim. 7. Therefore, in view of the above circumstances, the application I.A.No. 708 of 2007 deserves to be allowed and accordingly, allowed and C.R.P.No. 1294 of 2008 is allowed. The lower Court is directed to pass necessary orders on the application to set aside the exparte decree keeping in view the observations made by this Court above. Till the disposal of the application for setting aside the exparte decree, the lower Court cannot proceed with the execution in E.P.No.9 of 2007 and therefore, the order in E.P.No.9 of 2007 also set aside and the matter is remanded to the lower Court for disposal according to law along with the application to set aside the exparte decree. In case the exparte decree is set aside, the E.P. becomes infructuous. 8. Accordingly, the Civil Revision Petitions are disposed of. There shall be no order as to costs. Date: 09-02-2011. ________________________ N.R.L.NAGESWARA RAO,J INL THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION Nos. 5694 OF 2007 AND 1294 OF 2008 9th February, 2011 INL