Dismissed

K.K.Raveendran v. P.Sarada

Kerala HC19 Nov 2018Mat.Appeal/1078/2015

Case brief

AI extract

What is this about?

High Court dismissed the matrimonial appeal challenging the Family Court's refusal to set aside an ex parte decree and to condone delay. The Court held summons were not duly served and insufficient evidence proved sufficient cause for the delay.

What did the court decide?

Application to set aside ex parte decree and application to condone delay were dismissed; Matrimonial Appeal was dismissed.

K.K.Raveendran Vs P.Sarada — Maintenance and Alimony | Kerala HC (2018)

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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.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY, THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940

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Mat.Appeal.No. 1078 of 2015

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AGAINST THE ORDER IN I.A.NO.741/2015 IN OP 943/2007 of FAMILY COURT, ALAPPUZHA DATED 12-10-2015

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APPELLANT/ PETITIONER/ ORIGINAL RESPONDENT :

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K.K.RAVEENDRAN, AGED 59 YEARS, REPRESENTED BY POWER OF ATTORNEY HOLDER, KUMUDA BHAI, D/O.KESAVAN, KOOTHUVELI VEEDU,KALAVOOR VILLAGE, AMBALAPUZHA TALUK.

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BY ADVS. SMT.C.G.BINDU SMT.C.G.AJITHA SMT.SEEMA.E.GEORGE

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RESPONDENTS/ RESPONDENTS/ ORIGINAL PETITIONERS :

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1 P.SARADA, KANJIRATHUNKAL, KATTOOR.P.O, MARARIKULAM PANCHAYATH, ALAPPUZHA.

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2 BIJIMOL, KANJIRATHUNKAL, KATTOOR.P.O, MARARIKULAM PANCHAYATH, ALAPPUZHA. BY ADVS. SMT.K.R.DEEPA SMT.R.HEMALATHA SRI.B.GIRISH

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :

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Mat.Appeal.No. 1078 of 2015

JUDGMENT

K.Harilal, J.

The appellant was the defendant in

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OP.No.943/2007 of the Family Court, Alappuzha. He was set ex parte and an ex parte decree was passed on 11.08.2009. He filed IA.No.741/2015 through his Power of Attorney under Order 9 Rule 13 C.P.C. praying for setting aside the ex parte decree dated 11.08.2009. Along with the said IA., he filed I.A.No.740/2015 through his Power of Attorney under Section 5 of the Limitation Act for condoning the delay of 2140 days in filing the above said application. The Original Petition was filed by his wife along with her daughter against the appellant for return of gold, maintenance allowance, marriage expenses of the 2^nd respondent herein. According to the averments in IA.No.741/2015, he has not received any notice in the Original Petition. For the past several years, he is residing in Karnataka State. He was not aware of the pendancy of the above case. Only in January 2015, he came to know about the case. Thereafter, he authorized his sister, as his Power of Attorney holder for conducting

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Mat.Appeal.No. 1078 of 2015

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the case. He has not engaged any lawyer in the above

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case. He was not aware of the fact that the

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application to set aside the ex parte decree has to be filed. Her previous counsel did not advice her in this respect. Since summons was not duly served to him, the ex parte decree is liable to be set side after condoning the delay of 2140 days. This is the sum and substance of the averments in both the I.A.s.

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The respondent/ original petitioner filed

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objection contending mainly as follows :-

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According to the respondent, the above applications are not maintainable. During the trial stage, notice was issued to the respondent in the address shown in the Power of Attorney and that notice was duly served to him by way of affixure. During the trial stage, the respondent's Power of Attorney holder, who is none other that his sister filed IA.Nos.3438/2011, 3469/2011 and 3470/2011 before the Family Court to review the order attaching the property of the petitioner herein and to condone the delay in filing that petition. In that petition, notice was issued to the petitioner and the same were returned with an endorsement 'not known, returned to

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Mat.Appeal.No. 1078 of 2015

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the sender'. In the above circumstances, notice to

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the petitioner was affixed. The averment in the affidavit that notice was not issued to the respondent in his address in Karnataka is false. He was aware of the pendancy of the case in time. The contention that only in January 2015, he came to know about the case is false. The respondent and his Power of Attorney holder are residing in the same address. The copy of the Power of Attorney produced is a suspicious one and no document was produced to show that he was residing at Karnataka at the time when the summons was served to him. The applications were intended to cause delay in execution of the decree passed against him. With the aforesaid averments, she prayed for dismissing the application.

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No evidence either oral or documentary was produced in support of the averments in the petition. After considering the evidence on record, the court below dismissed the aforesaid applications on a finding that the respondent failed to prove sufficient

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cause for condoning the delay of 2140 days. Consequently, the application to set aside the ex parte decree was also dismissed. The legality and

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Mat.Appeal.No. 1078 of 2015

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correctness of the reasonings whereby the court below dismissed IA.Nos.740/2015 and 741/2015 are challenged in this appeal.

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appellant/ petitioner and the learned counsel for the respondent/ respondent.

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The sum and substance of the argument

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advanced by the learned counsel for the appellant is that the summons was not duly served on the appellant as provided under Order 5 Rule 20 of the C.P.C. and there is no material to show that he had knowledge about the passing of ex parte decree against him. Therefore, the court below ought to have allowed the application to set aside the ex parte decree, after condoning the delay of 2140 days.

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Per contra, the learned counsel for the

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respondent advanced arguments to justify the findings of the court below whereby both applications stands dismissed. According to the leaned counsel, the materials on record would prove that the summons was duly served on the respondent as provided under Order 5 Rule 20 C.P.C.and he was fully aware of the ex parte decree passed against him from the very beginning.

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Mat.Appeal.No. 1078 of 2015

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Further, it is contended that the respondent failed to

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prove that he had no knowledge about the ex parte decree and the materials available on record would prove that he had knowledge about the passing of the ex parte decree. It is further contended that though he admitted that he got knowledge about the passing of the decree on 02.01.2015 and entrusted the Power of Attorney holder to set aside the ex parte decree on 02.01.2015, the present application was filed only on 26.03.2015 and no reason has been shown in the application to condone the delay from 02.01.2015 to 23.06.2015.

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We have meticulously gone through the

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records and all the interlocutory applications referred to in the impugned common order. The Original Petition shows that it was filed against the respondent in his address in Karnataka. It is not disputed that the defendant is a person having his family house at Kalavur in Alappuzha. The summons sent to Karnataka returned with endorsement 'addressee

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left at present, address not known. So returned to sender'. Thereafter, the records show that the summons was served on the respondent by way of

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Mat.Appeal.No. 1078 of 2015

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affixure at his family house in Kalavur. Indisputably

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summons was not served in his address either at Karnataka or at Kalavur. If summons was not served at

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his house where he is ordinarily residing, it cannot be said that summons was duly served while computing the period of limitation to set aside an ex parte decree.

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In the above analysis, we find that the

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summons was not duly served on the respondent as provided under Order 5 Rule 20 C.P.C..

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According to Article 123 of the Limitation

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Act, 1963 to set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte, the period of limitation is 30 days from the date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree.

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Then the question to be considered is whether the respondent had knowledge about the passing of ex parte decree against him. In IA.Nos.740 of 2015 and 741/2015, the respondent had admitted that he came to know about the passing of ex parte decree against him on 02.01.2015. It is needless to say he could have filed an application to set aside the ex parte

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Mat.Appeal.No. 1078 of 2015

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decree within 30 days from 02.01.2015. But, in the

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instant case, he filed an application on 23.06.2015 only. Thus we find that there is a delay of 141 days only in filing the application to set aside ex parte decree. Then the question is whether the respondent has succeeded in proving sufficient cause for the delay in filing the petition to condone the delay of 141 days in filing the petition.

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Going by the averments in the affidavit filed along with the petition, it could be seen that the respondent himself admitted that immediately after getting knowledge about the ex parte decree, he executed a Power of Attorney in favour of his sister to set aside the ex parte decree passed against him and she has filed EA.Nos.2/2015 and 5/2015 in E.P.to accept the Power of Attorney and the said applications were allowed by the execution court. But, she was unaware of the requirement for setting aside the ex parte decree and her counsel has not given any instruction enlightening the need for setting aside an ex parte decree. Later, she came to know about the need for setting aside the ex parte decree from another counsel and subsequently she filed IA.Nos.740

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Mat.Appeal.No. 1078 of 2015

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and 741/2015. Going by the common order, we find that no evidence has been adduced to prove sufficient cause for not filing a petition to set aside the ex parte decree before 02.02.2015.

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Further we take notice that even though the appellant came to know about an ex parte decree passed against him, and the respondents have filed EP to execute the ex parte decree, he was not diligent in taking steps to set aside the ex parte decree and instead, he entrusted a Power of Attorney holder. That apart in the affidavit, though he stated that he came to know about the ex parte decree on 02.01.2015, the sources from which he got information about the ex parte decree was not disclosed in the affidavit. Though the lack of diligence in taking proper steps to set aside the ex parte decree was attributed on the shoulders of a lawyer, no evidence was adduced to prove the alleged negligence or latches from the part of the lawyer.

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More importantly, the respondent who has

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suffered an ex parte decree has not dared to enter the witness box so as to swear about the lack of knowledge about the ex parte decree till 2^nd January 2015 or

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Mat.Appeal.No. 1078 of 2015

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about the reason for not filing the application to set aside the ex parte decree till 23.06.2015 or to offer himself for cross-examination. In the absence of any kind of evidence either oral or documentary to prove

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any sufficient cause for the delay of 140 days in filing the petition to set aside the ex parte decree, the court below is justified in dismissing the application to condone the delay. Consequently, the dismissal of the application to set aside the ex parte decree also is justified.

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We do not find any reason to interfere with

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the impugned order under challenge. Hence this Mat. Appeal would stand dismissed.

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Sd/- K.HARILAL, JUDGE

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Sd/- ANNIE JOHN, JUDGE

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RKM

K.K.Raveendran v. P.Sarada

Case brief

What is this about?

What did the court decide?

K.K.Raveendran v. P.Sarada

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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