The Kerala High Court dismissed an appeal against the dismissal of an application to set aside an ex parte decree from the Family Court. The court held that the appellant failed to show sufficient cause for a delay of over ten years, particularly as he had knowledge of execution proceedings.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933
Mat.Appeal.No. 548 of 2011() ---------------------------AGAINST THE ORDER DATED 23/04/2011 IN IA.4169,4170/2009 IN OP.383/2002 of FAMILY COURT,THRISSUR ....................
APPELLANT/PETITIONER:
--------------------------------------MAJEED A.M., AGED 54 YEARS, SON OF MOIDU, ARIPURATHU HOUSE, MANKIDI DESOM, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK, PUTHENCHIRA P.O., THRISSUR-680 682.
BY ADVS. SRI.P.B.SAHASRANAMAN, SRI.K.JAGADEESH, SRI.T.S.HARIKUMAR.
RESPONDENT(S): DEFENDANT: ------------------------------------------------
V.S.RUKKIYA, AGED 51 YEARS, D/O.SAIDUKUNJI, VALIYAVEETTIL HOUSE, KOTTUMURI DESOM, KARUVULASSERRY VILLAGE, MALA, MUKUNDAPURAM, MALA P.O., THRISSUR.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
ORDER ON I.A.NO.1881/2011 IN M.A.NO.548/2011
DISMISSED
13/07/2011 SD/- THOTTATHIL B.RADHAKRISHNAN,JUDGE
SD/- N.K.BALAKRISHNAN, JUDGE
/TRUE COPY/
P.S.TO JUDGE
Kss
Thottathil B.Radhakrishnan
&
N.K.Balakrishnan, JJ.
= = = = = = = = = = = = = = = = = = = = = = = =
Mat.Appeal No.548 of 2011
= = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of July, 2011.
Judgment
Thottathil B.Radhakrishnan, J.
The appellant filed an application to set aside an ex parte decree passed by the Family Court in 2002. His plea was that he was abroad and had no notice of the original proceedings before the Family Court. He also says in his appeal before us that for about two years, he was undergoing imprisonment in a foreign country on account of a road accident. We do not find any shred of material, much less any legal evidence, before the Family Court in support of these submissions and pleadings. May be, the wife admits that the husband was abroad. But, an ex parte decree can
be set aside only if the decree was passed without notice to the opponent before the court below. Still, if he has knowledge of the proceedings, that will tilt the scales against
MA548/11 -: 2 :-
him. In so far as the case in hand is concerned, it is the undisputed situation that the appellant received notice from the execution proceedings and still waited for eight months thereafter to move the Family Court to have the ex parte decree set aside. With this, we do not find any legal infirmity in the exercise of the discretionary jurisdiction by the Family Court when it held that no sufficient cause has been shown to condone the enormous delay of 3620 days (nearly 10 years) in applying to have the ex parte decree set aside.
In the result, this appeal is dismissed in limine.
Thottathil B.Radhakrishnan, Judge.
N.K.Balakrishnan,
Judge.
Sha/1307
2 issues framed by the court
Whether an appellant can set aside an ex parte decree when there is a delay of over ten years without sufficient cause.
Whether the delay in applying to set aside the ex parte decree justifies its dismissal.
Majeed A.M.
Rukkiya
Thottathil B.Radhakrishnan
N.K.Balakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
