This matrimonial appeal challenged the Family Court's dismissal of applications to set aside an ex parte decree and condone a 1154-day delay. The Court rejected the appellant's claim of non-service, citing emigration records proving the appellant was in India and had acknowledged service, ultimately dismissing the appeal.
Appeal dismissed; no costs awarded.
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 A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 15TH DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943
MAT.APPEAL NO. 556 OF 2014
AGAINST THE ORDER DATED 29.5.2014 IN IA 984/2013 & 992/13 IN OP 844/2009 OF FAMILY COURT, NEDUMANGAD
APPELLANT/RESPONDENT:
SUDHEER, AGED 31 YEARS, S/O. MUHAMMED KANNU, RESIDING AT PANANTHAZHIKOM VEEDU, AYIROOR VILLAGE, THIRUVANANTHAPURAM DISTRICT.
BY ADV SRI.J.S.AJITHKUMAR
RESPONDENTS/PETITIONERS:
AGED 14 YEARS D/O. RASEENA BEEGUM, KOCHUKUNNIL VEEDU, MUTTAPPALA, NADAYARA, VARKALA.P.O., THIRUVANANTHAPURAM.695141
D/O. RASEENA BEEGUM,KOCHUKUNNIL VEEDU, MUTTAPPALA, NADAYARA, VARKALA.P.O., THIRUVANANTHAPURAM.695141
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4 SALMAN, AGED 9 YEARS S/O. YAHIS @ NASIM,KOCHUKUNNIL VEEDU, MUTTAPPALA, NADAYARA, VARKALA.P.O., THIRUVANANTHAPURAM.695141 R2 TO R4 REPRESENTED BY THIER MOTHER RASEENA BEEGUM BY ADVS. SMT.K.KUSUMAM FOR CAVEATORS SRI.BASANT BALAJI SMT.K.KUSUMAM SMT.S.S.MEERA SMT.RENY ANTO
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.09.2021, THE COURT ON 15.9.2021 DELIVERED THE FOLLOWING:
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J U D G M E N T
Dated this the 15th day of September, 2021
Kauser Edappagath, J.
This appeal has been preferred challenging common order passed by the Family Court, Attingal (for short, 'the court below') dated 29/5/2014 dismissing the application to set aside the ex parte decree as well as the application to condone the delay in filing the application to set aside the ex parte decree.
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Nos.984/2013 and 992/2013 to set aside the ex parte decree and to condone the delay of 1154 days in filing the application to set aside the ex parte decree. The appellant in the applications alleged that he was not served with notice in OP No.844/2009 and he was not aware of the said proceedings. He further alleged that he came to know of the decree from his relatives when the execution proceedings were initiated. The respondents opposed the applications. It was contended that there was no bonafides in the applications and the reason shown for condonation of the
delay as well as to set aside the ex parte decree was absolutely false. It was further contended that the appellant was served with notice and he engaged a lawyer to defend the case. The court below permitted both parties to adduce evidence. RW1 and RW2 were examined and Exts.A1 and A2 were marked on the side of the appellant. Ext.C1 was marked as court exhibit. After hearing both sides, the court below dismissed both the applications as per the impugned common order. This appeal has been preferred challenging the said common order.
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the respondents.
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A.S.G.I .furnished the details. The details furnished would show
that the appellant departed from India to Saudi Arabia on 25/1/2009 and arrived back to India on 11/9/2009 and thereafter he went back on 21/11/2012. It shows that the appellant was very much available in India during the period on which the notice was served to him. In these circumstances, there is no reason to disbelieve the endorsement in Ext.C1 as well as the evidence given by RW2 the process server that the notice was duly served to the appellant.
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present in the court. That apart, it is borne out from record that a joint written statement was filed by all the respondents together on 2/8/2010. Since the appellant disputed that he did not engage a lawyer or filed written statement, the lawyer was examined as RW1. He deposed that the appellant appeared before him and signed in the written statement. There is nothing to disbelieve his version.
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the delay as well as to set aside the ex parte decree is proved to be false. It is submitted at the bar that the decree has already been executed. Thus, if the applications are allowed, great prejudice would be caused to the respondents.
For the reasons stated above, we endorse the finding of the court below that the appellant has failed to show sufficient reason to set aside the ex parte decree and to show sufficient cause to condone the huge delay. Accordingly, we dismiss the appeal. No costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH JUDGE
Rp
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APPENDIX OF Mat.Appeal No.556/2014
APPELLANT'S EXHIBITS
ANNEXURE A1 TRUE COPY OF THE VAKALATH IN OP NO.844/2009
2 issues framed by the court
Whether the appellant established sufficient cause to condone a delay of 1154 days for setting aside an ex parte decree.
Whether the appellant proved non-receipt of notice in the underlying proceeding sufficient to set aside the ex parte decree.
Sudheer
Rasheena Beegeem
Sherin
Sheereena
Salman
A.Muhamad Mustaqe
Kauser Edappagath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
