Kerala High Court
Sabitha vs Abdul Nisar on 23 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
MAT.APPEAL NO. 905 OF 2022
AGAINST THE ORDER DATED 25.06.2022 IN I.A.NOS.1 AND 2 OF
2022 IN O.P.NO.232 OF 2018 ON THE FILE OF THE FAMILY
COURT, MALAPPURAM
APPELLANT:
SABITHA
AGED 43 YEARS,W/O. ABDUL NISAR,
MARAKKATTHODIKA HOUSE, KODIKUTHIPARAMB,
KOTTAPPURAM P.O., KONDOTTY TALUK,
MALAPPURAM DISTRICT, PIN - 676001.
BY ADV K.RAKESH
RESPONDENT:
ABDUL NISAR
AGED 50 YEARS
S/O. ALAVIKUTTY HAJI, MAKKAKAD HOUSE,
ANTHIYOORKUNNU AMSOM, KOTTAPPURAM DESOM,
KODIKUTHIPARAMB, KONDOTTY TALUK,
MALAPPURAM DISTRICT, PIN - 673003.
BY ADVS.
FIROZ K.M.
M.SHAJNA
THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 23.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
Mat.Appeal No.905 of 2022
JUDGMENT
P.G. Ajithkumar, J.
This is an appeal filed under Section 19(1) of the Family
Courts Act, 1984. The appellant assails the common order in
I.A.Nos.1 and 2 of 2022 In O.P.No.232 of 2018 on the file of
the Family Court, Malappuram.
2. The respondent entered appearance pursuant to
notice. After hearing both sides, delay of 75 days in filing the
appeal was condoned as per the order date 13.01.2023 in
I.A.No.1 of 2023.
3. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondent.
4. O.P.No.232 of 2018 was filed by the appellant
seeking a decree for return of gold ornaments and realisation
of money. On 20.10.2018, that original petition was decreed
ex parte. The decree was seen executed by sale of the
property of the respondent-judgment debtors. It was
thereafter the respondents filed I.A.Nos. 1 and 2 of 2022.
Mat.Appeal No.905 of 2022
I.A.No.2 of 2022 was filed for setting aside the ex parte
decree invoking the provisions under Order IX, Rule 13 of the
Code of Civil Procedure, 1908. I.A.No.1 of 2022 was filed for
condonation of delay of 1139 days under Section 5 of the
Limitation Act, 1963. The respondents contended that he did
not receive any notice in O.P.No.232 of 2018. It was also
contended that the address shown in the original petition was
not his correct address. Only when he was arrested by the
Karipur Police, he knew about the decree dated 20.10.2018.
On such grounds the respondent sought condonation of delay
and setting aside the exparte decree. The appellant has filed
a counter statement disputing the said contentions. The plea
of the appellant was that respondent deliberately avoided
appearance before the court and there was no reason for
condoning the delay filing application to set aside the decree.
5. The Family Court after perusal of the records in the
case held that there was no proper service of notice on the
respondent. The observations of the Family Court as to what
happened to the notices sent to the respondent are extracted
Mat.Appeal No.905 of 2022
below:
"I have perused the records. The records will reveal that
no notice has been served on the petitioner herein as
the respondent in O.P.232/2018. A notice/summons
issued for appearance on 29.05.2018 in the address
shown in the petition which is situated in Kozhikode
district was returned saying that the petitioner herein
was not residing in the address shown. Thereafter on
25.09.2018 the court had ordered notice by registered
post and the case was posted to 09.10.2018. That
notice was returned unserved saying that the door was
locked. It was also sent in the same address. The notice
by registered post was ordered inspite of the report of
the process server that the respondent was not residing
in the address given. Notice by registered post was
returned unserved, saying that the door was locked."
6. In the light of the aforesaid facts, the Family Court
held that there was no service of notice on the respondent.
The Family Court further held that only after his arrest, he
came to know about O.P.No.232 of 2018. It was in the said
circumstances the Family Court allowed I.A.Nos.1 and 2 of
2022. While allowing I.A.No1 of 2022, a cost of Rs.3,000/-
was imposed.
Mat.Appeal No.905 of 2022
7. The Apex Court in G.N.R.Babu @ S.N.Babu v.
B.C.Muthappa and others [AIR 2022 SC 4213] held that
when the trial court did not ensure that the summons was
issued in the correct address of the respondent and the
summons issued has been returned in the endorsement
"premises were locked", the proceedings continued exparte
was incorrect. In that case, after returning the summons with
an endorsement that the intimation delivered, but at the same
time there was no actual service of notice sent by post, no
further effort was there to serve summons. Atleast, service of
summons by affixture should have been made. Without
complying with such a requirements of provisions of Order V
of the Code, the Court could not legally proceed with the case
exparte against the respondent.
8. Similar are the facts of this case also. Records
would reveal that notice was not served on the respondent.
There was no affixture or any other kind of substituted
service. In such circumstances, the order allowing I.A.Nos.1
and 2 of 2022 whereby the delay was condoned and the
Mat.Appeal No.905 of 2022
exparte decree was set aside, cannot be said to be incorrect.
Hence, this appeal is bereft of merit and only liable to be
dismissed. The appeal is therefore dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
