Partly allowed

Rasique M v. Safnitha A.P

Kerala HC22 Nov 2019OP (FC)/156/2019

Case brief

AI extract

What is this about?

The High Court allowed an interim application to set aside part of the Family Court order imposing a condition to deposit 25% of the ex parte decree amount relating to gold ornaments, as no special circumstances warranted such a deposit.

What did the court decide?

The condition to deposit 25% of the decree amount was set aside; the decision to set aside the ex parte decree remained valid.

Rasique M Vs Safnitha A.P — Civil Procedure and Limitation | Kerala HC (2019)

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O.P.(FC).156/2019

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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 MR.JUSTICE C.S.DIAS

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FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941

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OP (FC).No.156 OF 2019

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AGAINST THE ORDER/JUDGMENT IN OP 58/2018 OF FAMILY COURT, THALASSERY

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PETITIONER/S:

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1 RASIQUE.M, AGED 29 YEARS, S/O.MOIDU, MACHERI HOUSE, AYIPPUZHA, IRIKKUR.P.O, KANNUR DISTRICT.

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2 RAHMATH,

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AGED 55 YEARS, W/O.LATE MOIDU, MACHERI HOUSE, IRIKKUR.P.O, PATTANNUR.

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3 RASHIDA.M, AGED 55 YEARS, W/O.LATE MOIDU, MACHERY HOUSE, IRIKKUR.P.O, PATTANUR AMSOM DESOM, KANNUR DISTRICT.

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4 ASEEM.K.T, AGED 40 YEARS, MACHERY HOUSE, IRIKKUR.P.O, PATTANUR AMSOM DESOM, KANNUR DISTRICT.

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BY ADVS.

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SRI.K.R.AVINASH (KUNNATH)

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O.P.(FC).156/2019

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SRI.ABDUL RAOOF PALLIPATH SRI.PRAJIT RATNAKARAN SRI.P.P.MUBASHIR ALI

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RESPONDENT/S:

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SAFNITHA A.P, AGED 19 YEARS, W/O.RASIQUE.M, KUNNEEM VEETTIL HOUSE, KOLAYADU AMSOM DESOM, THALASSERY TALUK, KANNUR-670 650.

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P.(FC).156/2019

JUDGMENT

K.Harilal, J.

Petitioners herein are the petitioners in I.A.No.1594 of 2018 in O.P.No.58 of 2018. The

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aforesaid original petition was filed by the respondent herein seeking a decree for realization of gold ornaments or its value from the petitioners

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herein. The petitioners were set ex parte on 04.09.2018. Subsequently, the petitioners filed the aforesaid I.A, to set aside the ex parte decree passed against them within the time limit. According to the petitioners, the counsel appearing for the petitioners informed them that the posting date of the case was 14.09.2018. But, actually, the posting date was on 04.09.2018. So they could not appear before the court on 04.09.2018, believing

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the information given by the counsel for the petitioners. Though the respondent opposed the said

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O.P.(FC).156/2019 4

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application, the court below allowed the said application and set aside the ex parte decree on condition that the petitioners shall deposit 25% of the sum of 11,87,200/- awarded by the court as per₹ the ex parte decree within fifteen days. The legality and correctness of the order, whereby the petitioners are directed to deposit 25% of the sum of 11,87,200/-, are challenged in this O.P.(FC).₹

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2. Heard the learned counsel for the

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petitioner.

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3. Though notice has been duly served to the respondent, there is no representation for the respondent. As regards the setting aside of the ex parte decree, the general view is that the parties must be given an opportunity to contest the case on merits, rather than disposal on technicality. In the instant case, the court below imposed the condition to deposit 25% of the decree amount without any special reason for insisting deposit of the amount.

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3. Going by the impugned order, we find that

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O.P.(FC).156/2019 5

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the application to set aside the ex parte decree was filed within the time limit itself and there is

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no special circumstance warranting imposition of condition to deposit 25% of the decree amount. In the absence of any special reason, the Family Court is not justified in insisting deposit of 25% of the decree amount. Hence, that part of the order, imposing condition to deposit 25% of the decree amount alone would stand set aside. We make it clear that the rest of the order would sustain.

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The O.P (FC) is allowed in part.

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Sd/K.HARILAL JUDGE

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Sd/C.S.DIAS JUDGE

O.P.(FC).156/2019

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1 TRUE COPY OF THE OP.58/2018 FILED BEFORE THE FAMILY COURT, THALASSERY.
EXHIBIT	P2 TRUE COPY OF THE COUNTER STATEMENT IN OP 58/2018 FILED BEFORE THE FAMILY COURT, THALASSERY.
EXHIBIT	P3 TRUE COPY OF THE EXPARTE JUDGMENT DATED 14/09/2018 IN OP 58/2018 OF THE FAMILY COURT, THALASSERY.
EXHIBIT	P4 TRUE COPY OF THE DECREE DATED 14.09.2018 IN OP .58/2018 OF THE FAMILY COURT, THALASSERY.
EXHIBIT	P5 TRUE COPY OF THE IA 1594/2018 IN OP 58/2018 FILED BEFORE THE FAMILY COURT, THALASSERY.
EXHIBIT	P6 TRUE COPY OF THE COUNTER IN I.A.NO.1594/2018 IN OP 58/2918 FILED BEFORE THE FAMILY COURT, THALASSERY
EXHIBIT	P7 TRUE COPY OF THE ORDER DATED 13.2.2019 IN IA .1594/18 IN OP 58/2018 OF THE FAMILY COURT, THALASSERY

Rasique M v. Safnitha A.P

Case brief

What is this about?

What did the court decide?

Rasique M v. Safnitha A.P

Case brief

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