Kerala High Court
Nisha Jose vs Vipin Babu on 22 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
OP (FC).No.139 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 1527/2012 OF FAMILY
COURT, NEDUMANGAD
PETITIONERS:
1 NISHA JOSE, AGED 40 YEARS, D/O.JOSE, PAIKKADU
VEEDU, PAYYAMPILLY NAGAR, WYANADU DISTRICT.
2 ABIGEL MARIA, D/O.VIPIN BABU, PAIKADU VEEDU,
PAYYAMPILLY VILLAGE, WYANADU DISTRICT,
REPRESENTED BY HER MOTHER AND GUARDIAN, NISHA,
D/O.JOSE, AGED 13, PAIKADU VEEDU, PAYYAMPILLY
VILLAGE, WYANADU DISTRICT.
BY ADVS.
SRI.P.MOHAMED SABAH
SMT.SAIPOOJA
RESPONDENT:
VIPIN BABU, AGED 47 YEARS, S/O.C.V.VARKEY,
CHERIYIL VEEDU, KERALADHITHIYAPURAM,
POWDIKONAM, THIRUVANANTHAPURAM-695 588.
R1 BY ADV. SRI.S.JATHIN DAS
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
22-03-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (FC).No.139 OF 2020
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JUDGMENT
Dated this the 22nd day of March 2021
A.Muhamed Mustaque, J
This original petition was filed challenging
the common order allowing the petition to
condone the delay in filing the application to
set aside the ex-parte decree and allowing the
application to set aside the ex-parte decree.
2. The petitioners are the petitioners in
O.P. No.1527 of 2012 on the file of the Family
Court, Nedumangad. That was filed for recovery
of gold ornaments and maintenance. This was
decreed ex-parte.
3. The respondent herein filed an
application to set aside the ex-parte decree
along with an application to condone the delay
of 1191 days. Both the applications have been
OP (FC).No.139 OF 2020
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allowed by a common order. The respondent
herein was directed to deposit a sum of
Rs.2,50,000/- towards maintenance as a condition
to set aside the ex-parte decree. It appears
that the respondent had complied with the
directions.
4. Aggrieved in allowing the application to
condone the delay and setting aside the ex-parte
decree, this original petition has been filed.
Adv. Saipooja, the learned counsel appearing for
the petitioner vehemently argued that there was
no sufficient ground to condone the delay and
therefore, the Court could not have allowed the
application. It is submitted that the
respondent was set ex-parte twice and he is
enterapping the petitioners for more than a
decade to enjoy the fruits of the decree she
obtained.
5. The ex-parte decree was originally
OP (FC).No.139 OF 2020
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passed on 26.11.2013. According to the
respondent, he was abroad and he came to know
about the ex-parte decree only on 5.03.2018.
According to the respondent, there was a failure
on the part of his counsel in informing about
the progress of the case.
As rightly pointed out by the learned
counsel for the petitioners, there were latches
on the part of the respondent. However, the
Court in the substantiative interest of the
parties allowed it on payment of Rs. 2,50,000/-
towards maintenance. Perhaps, this would have
remedied the injustice otherwise would have
caused to the petitioners. It is to be noted
that if the respondent is not allowed to
contest, he will be saddled with a huge
liability, i.e., he has to pay the value of 32
sovereigns of gold ornaments as well as Rs.
10,80,000/- towards arrears of maintenance. In
such circumstances, we are of the view that we
OP (FC).No.139 OF 2020
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may be justified in interfering with the
discretion so exercised by the Family Court.
Accordingly, we dismiss the original petition.
However, we direct the Family Court to dispose
of the matter within a period of three months.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
PR
OP (FC).No.139 OF 2020
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APPENDIX
PETITIONERS EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SAID JUDGMENT DATED
26.11.2013 IN O.P.NO.1527/2012 PASSED
BY THE FAMILY COURT, NEDUMANGADU.
EXHIBIT P2 TRUE COPY OF THE SAID ORIGINAL
PETITIONER (GUARDIAN) NO.2107/2015 ON
THE FILE OF THE HONOURABLE FAMILY
COURT, THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED
30.07.2019 IN I.A.NO.433/2018 AND
I.A.NO.434/2018 IN O.P.NO.1527/2012 ON
THE FILE OF FAMILY COURT, NEDUMANGADU.
