Allowed

Minimol.R.Mathew v. Royson Mathew and Ors.

Kerala HC19 Jun 2012Mat.Appeal/232/2010

Case brief

AI extract

What is this about?

The Appellate Court allowed two matrimonial appeals and set aside the decree passed by the Family Court due to the first respondent's non-service of notice and the court's erroneous statements regarding his participation, depriving him of natural justice.

What did the court decide?

The judgment and decree in O.P. No. 3 of 2007 were set aside; the matter to be tried afresh after serving notice to all parties.

Minimol.R.Mathew Vs Royson Mathew and Ors. — Succession and Inheritance | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934

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Mat. Appeal No. 232 of 2010 ( )

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OP.3/2007 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR

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APPELLANT(S)/PETITIONER:

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MINIMOLE R. MATHEW, W/O. ROYSON MATHEW, NEERACKAL HOUSE KIZHATHADIYOOR KARA, LALAM VILLAGE,

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MEENACHIL TALUK KOTTAYAM DISTRICT.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENT(S):RESPONDENTS

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ROYSON MATHEW, S/O. MATHEW, AGED 41 YEARS, ANITHOTTATHIL HOUSE, MANJOOR.P.O DO VILLAGE, VAIKOM TALUK AND KOTTAYAM DISTRICT NOW RESIDING AT SECTOR 13, NOIDA, NEW DELHI.

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MATHEW, AGED 70 YEARS,

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ANITHOTTATHIL HOUSE, MANJOOR.P.O, DO VILLAGE VAIKOM TALUK, AND KOTTAYAM DISTRICT.

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MARYKUTTY, AGED 64 YEARS, ANITHOTTATHIL HOUSE, MANJOOR.P.O, DO VILLAGE VAIKOM TALUK AND KOTTAYAM, DISTRICT (DIED)

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THE FEDERAL BANK LIMITED, MUTTUCHIRA BRANCH,

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REPRESENTED BY ITS MANAGER.

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THE SOUTH INDIAN BANK LIMITED, KOTTAYAM NRI BRANCH, REPRESENTED BY ITS BRANCH MANAGER.

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M.A.NO.232/2010

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THE SOUTH INDIAN BANK, MARINE DRIVE BRANCH, BROAD WAY, ERNAKULAM REPRESENTED BY ITS BRANCH MANAGER.

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BY ADV. SRI.P.M.JOSEPH FOR R2 BY ADV. SRI.PRAVEEN K. JOY FOR R4 BY ADV. SRI.P.GOPAKUMARAN NAIR FOR R1 BY ADV. SRI.C.S.DIAS BY ADV. SRI.N.K.SUBRAMANIAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2012, ALONG WITH MAT.APPEAL NOS.252/2010 AND 864/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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Mat. Appeal Nos.232, 252 & 864 of 2010

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Dated this the 19^th day of June, 2012

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JUDGMENT

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K.T.Sankaran, J.

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Minimol.R.Mathew (appellant in Mat. Appeal No.232 of 2010, the respondent in Mat. Appeal No.864 of 2010 and the first respondent in Mat. Appeal No.252 of 2010) filed O.P.No.3 of 2007 on the file of the Family Court, Kottayam at Ettumanoor against her husband Royson Mathew, his parents and others, for a decree for return of money, gold ornaments and articles. The Family Court allowed the petition in part and Minimol Mathew was given a decree to realise 50,000/- with 9% interest from 1.1.2007, the date of filing of the suit, and 35 sovereigns of gold ornaments or its approximate value of 4 lakhs with interest at 9% per annum from the date of judgment from respondents 1 to 3 before the Family Court. The Family Court also allowed

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Mat. Appeal Nos.232, 252 & 864/2010 2

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costs of ` 2,000/- to Minimol Mathew. Dissatisfied with the amount awarded by the court below, Minimol Mathew filed Mat. Appeal No.232 of 2010. Respondent No.2 before the Family Court who is the father-in-law of Minimol Mathew filed Mat. Appeal No.252 of 2010, aggrieved by the decree passed by the Family Court.

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Royson Mathew, the first respondent before the Family Court, filed I.A.No.863 of 2010 in O.P.No.3 of 2007 to set aside the ex-parte decree. That application was dismissed by the Family Court by the order dated 21.7.2010 holding that the decree passed in the case was not an ex-parte decree, but a decree on the merits. Royson Mathew filed Mat. Appeal No.864 of 2010 challenging the order dated 21.7.2010 in I.A.No.863 of 2010.

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The contention of Royson Mathew, the first respondent before the Family Court, is that he was not served with notice in the proceedings and therefore, he could not appear and contest the case. It is also submitted by him that he did not execute any

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Mat. Appeal Nos.232, 252 & 864/2010 3

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power of attorney in favour of respondents 2 and 3. The Family Court held in paragraph 3 of the judgment as follows :

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“3. The first respondent appeared through power of attorney. But he has not filed any objection.”

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In paragraph 12 of the judgment, the Family Court held

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thus :

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“The first respondent/husband though appeared through power of attorney, he has not even contested the case. He filed objection through the power of attorney.”

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There is contradiction in the aforesaid statements. In paragraph 3 of the judgment, the Family Court says that the first respondent did not file any objection though he appeared through power of attorney. In paragraph 12 of the judgment, it is stated that though the first respondent before the court below filed objection through power of attorney, he did not contest the case.

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Mat. Appeal Nos.232, 252 & 864/2010 4

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The counsel appearing for all the parties submitted that the aforesaid statements in the judgment of the Family Court are erroneous. It is agreed by the counsel appearing for the parties that on verification of the records they are satisfied that the first respondent before the court below was not served with notice and he did not enter appearance in the case either on his own or through power of attorney. The counsel for the parties also submitted that no objection was filed by the first respondent before the court below. Thus it is clear that the first respondent was not served with notice and thus he was denied of an opportunity to contest the case. He could not be set ex-parte nor could the Family Court decide the case on the merits against him without serving notice on him. Even after he filed an application to set aside the ex-parte decree (probably under the impression that an ex-parte decree was passed against him), the court below did not allow that prayer on the ground that no ex-parte decree was passed against the first respondent before the court below.

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Due to the non service of notice and due to the

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Mat. Appeal Nos.232, 252 & 864/2010 5

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erroneous statements made by the court below, injustice was caused to the first respondent. The decree as against him is therefore liable to be set aside. If the decree against the first respondent in the O.P. is to be set aside, naturally the decree against respondents 2 and 3 therein is also liable to be set aside. The learned counsel appearing for respondent No.2 submitted that respondent No.3 passed away after the pronouncement of the judgment by the Family Court and before the date of filing of appeal.

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For the aforesaid reasons, we allow Mat. Appeal Nos.232 of 2010 and 252 of 2010 and set aside the judgment and decree in O.P.No.3 of 2007 on the file of the Family Court, Kottayam at Ettumanoor. The Family Court shall try and dispose of the case afresh after affording an opportunity of being heard to all the parties. It is submitted by the learned counsel appearing for Royson Mathew (first respondent before the Family Court) that he will enter appearance in O.P.No.3 of 2007 and that no fresh notice need be issued in the matter.

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Mat. Appeal Nos.232, 252 & 864/2010 6

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In view of the disposal of Mat. Appeal Nos.232 of 2010

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and 252 of 2010 in the manner indicated above, no separate

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order need be issued in Mat. Appeal No.864 of 2010.

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The parties shall appear before the Family Court, Kottayam at Ettumanoor on 6.8.2012. Send back the records.

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K.T.SANKARAN JUDGE

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M.L.JOSEPH FRANCIS

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JUDGE

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csl

Minimol.R.Mathew v. Royson Mathew and Ors.

Case brief

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Minimol.R.Mathew v. Royson Mathew and Ors.

Case brief

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