Abdul Rasheed vs Thasleena
2021 Latest Caselaw 7606 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                 THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                      &

                THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

       THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

                            OP (FC).No.48 OF 2021

  AGAINST THE ORDER I.A.NOS.1/2020 AND I.A.NO.2/2020 IN O.P.NO.73/2014
              DATED 07-07-2020 OF FAMILY COURT, MALAPPURAM
                                  ---------

PETITIONER/S:

       1         ABDUL RASHEED, AGED 38 YEARS,
                 S/O.MUHAMMED, AKC HOUSE, THAVARAPARAMBU P.O.,
                 KAVANOOR, MALAPPURAM DISTRICT.

       2         MUHAMMED, AGED 69 YEARS
                 AKC HOUSE, THAVARAPARAMBU P.O.,
                 KAVANOOR, MALAPPURAM DISTRICT.

       3         AYISHA, AGED 60 YEARS,
                 W/O.MUHAMMED, AKC HOUSE,
                 THAVARAPARAMBU P.O., KAVANOOR,
                 MALAPPURAM DISTRICT.

       4         ABDUL GAFOOR, AGED 35 YEARS,
                 S/O.MUHAMMED, AKC HOUSE,
                 THAVARAPARAMBU P.O., KAVANOOR,
                 MALAPPURAM DISTRICT.

                 BY ADVS.
                 SRI.BABU S. NAIR
                 SMT.SMITHA BABU
                 SRI.P.A.RAJESH
                 SMT.SHAMSEERA. C.ASHRAF
                 SRI.R.B.RAJESH
                 SHRI.BHARATH MOHAN

RESPONDENT/S:

                 THASLEENA, AGED 32 YEARS,
                 D/O.KOYA, POTTAMMAL HOUSE,
                 PUTHUPANAM, AIKARAPPADI P.O.,
                 MALAPPURAM DISTRICT, PIN-673637.

                 BY ADV. SHRI.P.VENUGOPAL

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04.03.2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (FC).No.48/2021                    2




                               JUDGMENT

Dated this the 4th day of March 2021 A.Muhamed Mustaque, J.

This original petition was filed challenging

Ext.P5 and Ext.P6. Ext.P5 common order is dated

07.07.2020 directing the petitioners to pay costs of

Rs.20,000/- to the respondent within one month to set

aside the ex parte decree.

2. The second challenge is in regard to Ext.P6

proclamation of sale dated 04.01.2021.

3. The petitioners' main challenge is as against

Ext.P5 common order imposing costs of Rs.20,000/-. The

petitioners submit that such an onerous condition

should not have been imposed by the Family Court to

set aside the ex parte decree. The decree was passed

on 18.03.2016. The petitioners filed an application to

condone the delay of 1338 days in filing the

application to set aside the ex parte decree. That was

allowed on payment of costs of Rs.20,000/-. The

petitioners did not pay the costs. In the execution

proceedings, proclamation of sale was issued on

04.01.2021. It is thereafter, the petitioners have

chosen to challenge the order passed to set aside the

ex parte decree. There was a considerable delay on

the part of the petitioners in approaching this Court.

That apart, this Court will not be justified in

interfering with the order imposing costs. The delay

was more than 1338 days. The Family Court has reasons

for imposing costs. The very conduct of the

petitioners in approaching this Court after the

proclamation of sale itself would show that there is no bona fides on the part of the petitioners. Pursuant

to the proclamation of sale, the decree holder-

respondent purchased the property in an auction. Now

it is posted for confirmation of sale on 26.3.2021.

The fervent plea made by the learned counsel for the

petitioners that the second wife and children are

residing in the house which is the subject matter of

the sale and they will be thrown out if the delivery

is effected, to invoke sympathy, cannot undo the

misery and agony of the decree holder. The petitioners

waited for more than four years to set aside the ex

parte decree. In spite of the order passed, allowing

his application, he had not chosen to pay costs. The

latches on the part of the petitioners cannot be taken

advantage of by filing the original petition like

this.

4. We, accordingly, dismiss this original

petition. However, to work out any settlement with the

respondent, we order that the delivery shall not be

effected for a period of two months.

We direct the parties to appear before the

Mediation Sub Centre at Tirur on 18.03.2021.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

KAUSER EDAPPAGATH

JUDGE

ln

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PETITION FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, MALAPPURAM AS O.P.NO.73/2014 DATED 01.02.2014.

EXHIBIT P2 TRUE COPY OF THE EX-PARTE ORDER PASSED BY THE FAMILY COURT, MALAPPURAM DATED 28.03.2016.

EXHIBIT P3 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONERS AS I.A.NO.1/2020 IN O.P.NO.73/2014 OF THE FAMILY COURT, MALAPPURAM DATED 18.12.2019.

EXHIBIT P4 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONERS AS I.A.NO.2/2020 IN O.P.NO.73/2014 OF THE FAMILY COURT, MALAPPURAM DATED 18.12.2019.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 07.07.2020 IN I.A.NO.1/2020 AND I.A.NO.2/2020 O.P.NO.73/2014 BEFORE THE FAMILY COURT, MALAPPURAM.

EXHIBIT P6 TRUE COPY OF THE SALE NOTICE IN O.P.NO.9/2018 IN O.P.NO.73/14 OF THE FAMILY COURT, MALAPPURAM DATED 04.01.2021.

RESPONDENTS EXHIBITS:TRUE COPY OF THE JUDGMENT DATED 01.12.2020 PASSED BY THIS HONOURABLE COURT IN O.P. (Crl.) No.298/2020.

//TRUE COPY//

P.A.TO JUDGE