Sumesh G.S vs Sumesh G.S
2021 Latest Caselaw 7410 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

           THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                 &

          THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

   WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                     Mat.Appeal.No.428 OF 2020

AGAINST THE ORDER DATED 02.03.2020 IN IA NO.725/19 IN IA.1271/16 &
IA.726/19 IN IA1272/16 IN OP 1060/2014 OF FAMILY COURT, NEDUMANGAD


APPELLANT/PETITIONERS/PETITIONERS/RESPONDENTS:

      1      SUMESH G.S.
             AGED 42 YEARS
             S/O.GOPI, VISMAYA, MALAYADY, VINOBHANIKETHAN,
             P.O.THOLICODE VILLAGE, NEDUMANGAD TALUK,
             THIRUVANANTHAPURAM DISTRICT, PIN- 695 542.

      2      GOPI K., AGED 69 YEARS
             S/O.KUTTAN PANICKER, MALAYADY, VINOBHANIKETHAN,
             P.O.THOLICODE VILLAGE, NEDUMANGAD TALUK,
             THIRUVANANTHAPURAM DISTRICT, PIN - 695 542.

             BY ADVS.
             SRI.ABU MATHEW
             SRI.AJU MATHEW

RESPONDENT/RESPONDENT/RESPONDENT/PETITIONER:

             PRINILA JOLY, AGED 40 YEARS
             D/O.PRAKASHINI, PRINILALAYAM, ANAPPARA P.O.,
             KOTTAKKAKOM MURI, VITHURA VILLAGE, NEDUMANGAD TALUK,
             THIRUVANANTHAPURAM DISTRICT, PIN - 695 551.

             R1 BY ADV. SRI.R.B.RAJESH

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD           ON
03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.No.428/2020
                                         2




                                      JUDGMENT

Dated this the 3rd day of March 2021

A.MUHAMED MUSTAQUE, J.

This Mat.Appeal was filed challenging the common order

in interlocutory applications filed in O.P.No.1060/2014 on

the files of the Family Court, Nedumangad. The appellants

were set ex-parte in the proceedings. An ex-parte decree

was passed. Thereafter appellants filed application to set

aside the ex-parte decree along with a petition to condone

the delay of 173 days. That was not prosecuted and

dismissed for default. Thereafter, the appellants filed an

application to restore the application with a petition to

condone the delay of 670 days. Those applications were

taken up together and by a common order, the Family Court

dismissed the same. The Family Court found no reason to

condone the delay and accordingly dismissed the

applications.

2. `The original petition was filed for recovery of

gold ornaments and return of money. The Family Court

passed a decree based on an unchallenged testimony of the

respondent.

3. We have perused the records. Though we are not

inclined to accept the reasons for condonation of delay, Mat.Appeal.No.428/2020

we find that the appellants have been mulcted with huge

liability consequent to an ex-parte decree passed against

them. In the interest of justice, we are of the view that

liberty should be given to the appellants to contest the

case. However, it can be only on terms.

4. We set aside the impugned orders on condition that

the appellants pay a sum of Rs.50,000/- to the respondent

within a period of one month. On payment of the amount as

above, all applications will stand allowed and

O.P.No.1060/2014 will stand restored. The parties are

directed to appear before the Family Court on 7.4.2021 and

thereafter the Family Court shall dispose of the matter

within a period of 4 months thereafter. It is made clear

that in the event of any failure to pay the cost as above,

the appellants will not get the benefit of this judgment.

Mat.Appeal is disposed of. Pending interlocutory

applications, if any, are dismissed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                                Dr. KAUSER EDAPPAGATH

kp                True copy                               JUDGE
                    P.A. To Judge
 Mat.Appeal.No.428/2020





                               APPENDIX

APPELLANTS' EXHIBITS:

ANNEXURE A1              CERTIFIED COPY OF THE EXPARTE JUDGMENT

DATED 19/01/2016 PASSED IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT NEDUMANGAD.

ANNEXURE A2 CERTIFIED COPY OF THE PETITION TO SET ASIDE THE EXPARTE DECREE AS I.A.NO.1271 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.

ANNEXURE A2(A) ENGLISH TRANSLATION OF ANNEXURE A2 APPLICATION.

ANNEXURE A3 CERTIFIED COPY OF THE PETITION TO CONDONE DELAY IN FILING THE APPLICATION TO SET ASIDE THE EXPARTE DECREE AS I.A.NO.1272 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.

ANNEXURE A3(A) ENGLISH TRANSLATION OF ANNEXURE A3 APPLICATION.

ANNEXURE A4 CERTIFIED COPY OF THE COMMON ORDER DATED 31/05/2017 PASSED IN I.A.NO.1271 OF 2016 AND I.A.NO.1272 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.

ANNEXURE A5 CERTIFIED COPY OF THE RESTORATION APPLICATION AS I.A.NO.725 OF 2019 IN I.A.NO.1271 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.

ANNEXURE A5(A) ENGLISH TRANSLATION ANNEXURE A5 APPLICATION.

ANNEXURE A6 CERTIFIED COPY OF THE PETITION TO CONDONE THE DELAY AS I.A.NO.726 OF 2019 IN I.A.NO.1272 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.

ANNEXURE A6(A) ENGLISH TRANSLATION ANNEXURE A6 APPLICATION.