Kerala High Court
Anikuttan @ Manikuttan @ Maniyan vs Remakumari on 24 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
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
Mat.Appeal.No.576 OF 2016
AGAINST THE ORDER/JUDGMENT IN OP 502/2011 OF FAMILY
COURT,TRIVANDRUM
APPELLANT:
ANIKUTTAN @ MANIKUTTAN @ MANIYAN, S/O. NESAN
NADAR, AGED 42 YEARS, S/O. NADESAN NADAR, RESIDING
ATKEELIYODE MEKKUMKARA PUTHEN VEEDU,MARANELLOOR
DESOM AND VILLAGE,PIN - 695 542.
BY ADVS.
SRI.J.R.PREM NAVAZ
SRI.P.T.SHEEJISH
RESPONDENT:
REMAKUMARI, AGED 46 YEARS, D/O. THANKAM, RESIDING
AT KOLATHUVILA, THEVARAKODU,MELEPUTHAN VEEDU,
MARANALLOOR DESOM,MARANALLOOR VILLAGE - 695 542.
R1 BY ADV. SRI.M.R.SARIN
R1 BY ADV. SRI.V.VINAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
24.03.2021, ALONG WITH OP (FC).535/2020, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Mat.Appeal.576/2016 & OP (FC).535/2020
..2..
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 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
OP (FC).No.535 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 502/2011 OF FAMILY
COURT,TRIVANDRUM
PETITIONER:
ANIKUTTAN @ MANIKUTTAN @ MANIYAN, AGED 46 YEARS
S/O.NESAN NADAR, S/O.NADESAN NADAR, RESIDING AT
KEELIYODE MEKKUMKARA PUTHEN VEEDU, MARANELLOOR
DESOM AND VILLAGE, PIN-695 542.
BY ADVS.
SRI.J.R.PREM NAVAZ
SHRI.SUMEEN S.
RESPONDENT:
REMAKUMARI, AGED 46 YEARS, D/O.THANKAM, RESIDING
AT KOLATHUVILA, THEVARAKODU, MELEPUTHAN VEEDU,
MARANALLOOR DESOM, MARANALLOOR VILLAGE, PIN-695
542.
R1 BY ADV. SRI.M.R.SARIN
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
24.03.2021, ALONG WITH Mat.Appeal.576/2016, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.576/2016 & OP (FC).535/2020
..3..
JUDGMENT
[ Mat.Appeal.576/2016, OP (FC).535/2020 ]
Dated this the 24th day of March 2021
A.Muhamed Mustaque, J
Mat. Appeal No. 576 of 2016 and O.P. (FC) No.535
of 2020 are taken up together and are being disposed
of by a common judgment. In both cases, the parties
are same and the dispute is arising from the same
proceedings.
2.` Mat. Appeal No. 576 of 2016 was filed
challenging the order dismissing the application to
set aside the ex-parte decree. Application to set
aside the ex-parte decree was filed along with an
application to condone the delay of 419 days. The
application to condone the delay was dismissed
holding that there was no sufficient reason to
condone the delay and consequently, the application
to set aside the ex-parte decree has also been
dismissed.
Mat.Appeal.576/2016 & OP (FC).535/2020
..4..
3. O.P (FC) No. 535 of 2020 was filed
challenging the execution proceedings to execute the
ex-parte decree.
4. The delay in filing the application to set
aside the ex-parte decree was about 419 days.
According to the appellant, he was in judicial
custody during that period and therefore, he could
not effectively contest the matter. The Family
Court noted that the appellant received summons on
9.04.2012 as revealed from the case records and
therefore, he was bound to explain the reasons for
the delay. It appears that the appellant had not
produced any records before the Family Court to
prove that he was in judicial custody. However, the
fact that he was in judicial custody is not disputed
by the respondent. According to the respondent, he
was involved in an offence under Sec.376 of Indian
Penal Code. The respondent also admitted that he
was in judicial custody.
In such circumstances, we are of the view that
Mat.Appeal.576/2016 & OP (FC).535/2020
..5..
an opportunity should be given to the appellant to
contest the matter. However, latches on the part of
the appellant, at least at the stage of filing an
application to set aside the ex-parte decree, cannot
be overruled. He could have very well explained
with relevant records in regard to the delay. The
Family Court was constrained to dismiss the
application and respondent was unnecessarily dragged
to this Court on account of such laches.
Accordingly, we are of the view that the application
can be allowed only on terms. Accordingly, we fix
the cost at Rs.10,000/- (Rupees Ten Thousand only).
The cost shall be paid to the respondent through the
counsel appearing for the respondent before this
Court within a period of two weeks and produce the
receipt before the Family Court, Thiruvananathpuram.
Accordingly, we allow the Mat. Appeal. It is made
clear that if the appellant fails to pay the cost
within the time as above, the appellant will not
have the benefit of this judgment. The parties are
directed to appear before the Family Court,
Thiruvananthapuram, on 16.04.2021. In the light of
Mat.Appeal.576/2016 & OP (FC).535/2020
..6..
above, O.P (FC) No.535 of 2020 challenging the
execution proceedings is closed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
PR
Mat.Appeal.576/2016 & OP (FC).535/2020
..7..
APPENDIX OF OP (FC) 535/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE JUDGMENT DATED
20.10.2020 IN O.P.NO.502 OF 2012.
EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED
11.02.2016 PASSED IN I.A.NO.253 OF
2014 AND I.A.NO.254 OF 2014 IN
O.P.NO.502 OF 2011.
EXHIBIT P3 THE TRUE COPY OF THE EXECUTION
APPLICATION FILED BY THE HEREIN
RESPONDENT SEEKING EXECUTION OF
EXHIBIT P1 JUDGMENT.
EXHIBIT P4 THE TRUE COPY OF THE OBJECTION FILED
BY THE PETITIONER AGAINST EXHIBIT P3.
EXHIBIT P5 THE TRUE COPY OF THE ORDER DATED
16.12.2019 IN E.P.NO.47/2014 IN
O.P.NO.502 OF 2011.
EXHIBIT P6 THE TRUE COPY OF THE NOTICE ISSUED TO
THE PETITIONER DATED 23.11.2020.
