Partly allowed

Sumesh G.S. v. Prinila Joly

Kerala HC3 Mar 2021Mat.Appeal/428/2020

Case brief

AI extract

What is this about?

High Court of Kerala set aside impugned orders dismissing applications to set aside an ex-parte decree and condone delay, directing appellants to pay Rs.50,000 to respondent within one month. Upon payment, applications allowed and original suit restored for argument before Family Court.

What did the court decide?

Impugned orders set aside upon appellants paying Rs.50,000 to respondent within one month; original suit restored.

Sumesh G.S. Vs Prinila Joly — Matrimonial and Divorce | Kerala HC (2021)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

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WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

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Mat.Appeal.No.428 OF 2020

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AGAINST THE ORDER DATED 02.03.2020 IN IA NO.725/19 IN IA.1271/16 & IA.726/19 IN IA1272/16 IN OP 1060/2014 OF FAMILY COURT, NEDUMANGAD

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APPELLANT/PETITIONERS/PETITIONERS/RESPONDENTS:

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1 SUMESH G.S. AGED 42 YEARS S/O.GOPI, VISMAYA, MALAYADY, VINOBHANIKETHAN, P.O.THOLICODE VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT, PIN- 695 542.

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2 GOPI K., AGED 69 YEARS S/O.KUTTAN PANICKER, MALAYADY, VINOBHANIKETHAN, P.O.THOLICODE VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695 542.

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BY ADVS. SRI.ABU MATHEW SRI.AJU MATHEW

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RESPONDENT/RESPONDENT/RESPONDENT/PETITIONER:

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PRINILA JOLY, AGED 40 YEARS D/O.PRAKASHINI, PRINILALAYAM, ANAPPARA P.O., KOTTAKKAKOM MURI, VITHURA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695 551.

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R1 BY ADV. SRI.R.B.RAJESH

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal.No.428/2020

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JUDGMENT

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Dated this the 3rd day of March 2021

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A.MUHAMED MUSTAQUE, J.

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This Mat.Appeal was filed challenging the common order in interlocutory applications filed in O.P.No.1060/2014 on the files of the Family Court, Nedumangad. The appellants were set ex-parte in the proceedings. An ex-parte decree was passed. Thereafter appellants filed application to set aside the ex-parte decree along with a petition to condone the delay of 173 days. That was not prosecuted and dismissed for default. Thereafter, the appellants filed an application to restore the application with a petition to condone the delay of 670 days. Those applications were taken up together and by a common order, the Family Court dismissed the same. The Family Court found no reason to condone the delay and accordingly dismissed the applications.

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`The original petition was filed for recovery of gold ornaments and return of money. The Family Court passed a decree based on an unchallenged testimony of the respondent.

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We have perused the records. Though we are not inclined to accept the reasons for condonation of delay,

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Mat.Appeal.No.428/2020

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we find that the appellants have been mulcted with huge liability consequent to an ex-parte decree passed against them. In the interest of justice, we are of the view that liberty should be given to the appellants to contest the case. However, it can be only on terms.

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We set aside the impugned orders on condition that the appellants pay a sum of Rs.50,000/- to the respondent within a period of one month. On payment of the amount as above, all applications will stand allowed and O.P.No.1060/2014 will stand restored. The parties are directed to appear before the Family Court on 7.4.2021 and thereafter the Family Court shall dispose of the matter within a period of 4 months thereafter. It is made clear that in the event of any failure to pay the cost as above, the appellants will not get the benefit of this judgment.

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Mat.Appeal is disposed of. Pending interlocutory applications, if any, are dismissed.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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Dr. KAUSER EDAPPAGATH

True copy

JUDGE

P.A. To Judge

Mat.Appeal.No.428/2020

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APPENDIX

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APPELLANTS' EXHIBITS:

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ANNEXURE A1	CERTIFIED COPY OF THE EXPARTE JUDGMENT DATED 19/01/2016 PASSED IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT NEDUMANGAD.
ANNEXURE A2	CERTIFIED COPY OF THE PETITION TO SET ASIDE THE EXPARTE DECREE AS I.A.NO.1271 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.
ANNEXURE A2(A)	ENGLISH TRANSLATION OF ANNEXURE A2 APPLICATION.
ANNEXURE A3	CERTIFIED COPY OF THE PETITION TO CONDONE DELAY IN FILING THE APPLICATION TO SET ASIDE THE EXPARTE DECREE AS I.A.NO.1272 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.
ANNEXURE A3(A)	ENGLISH TRANSLATION OF ANNEXURE A3 APPLICATION.
ANNEXURE A4	CERTIFIED COPY OF THE COMMON ORDER DATED 31/05/2017 PASSED IN I.A.NO.1271 OF 2016 AND I.A.NO.1272 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.
ANNEXURE A5	CERTIFIED COPY OF THE RESTORATION APPLICATION AS I.A.NO.725 OF 2019 IN I.A.NO.1271 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.
ANNEXURE A5(A)	ENGLISH TRANSLATION ANNEXURE A5 APPLICATION.
ANNEXURE A6	CERTIFIED COPY OF THE PETITION TO CONDONE THE DELAY AS I.A.NO.726 OF 2019 IN I.A.NO.1272 OF 2016 IN O.P.NO.1060 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD.
ANNEXURE A6(A)	ENGLISH TRANSLATION ANNEXURE A6 APPLICATION.

Sumesh G.S. v. Prinila Joly

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Sumesh G.S. v. Prinila Joly

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