Beevi vs Shamila, Subair and Salam

K.M. Joseph, J.—These appeals being connected, they are disposed of by this common judgment.

MA. No. 962/2010 is filed against the order in I.A. No. 4049/2008 in OP No. 218/2006 while MA No. 965/2010 is filed against the order in I.A. No. 5034/2008 in OP No. 218/2006.

O.P.218/2006 is filed by the Ist Respondent in both these cases against Respondents 2 and 3 and the Appellant. Respondent No. 2 is the husband of the Ist Respondent. The 3rd Respondent is the brother of the 2nd Respondent. The Appellant is the mother of Respondents 2 and 3 and mother-in-law of the Ist Respondent. The OP was filed for recovery of gold ornaments and money. The same has been decreed exparte. The Appellant filed application to set aside the exparte decree accompanied by an application to condone the delay of 503 days in filing the application. Both the applications have been rejected by the impugned orders. Hence, these appeals.

We heard the learned Counsel for the Appellant and learned Counsel for the Ist Respondent. In view of the order we propose to pass we notice that it may not be necessary to hear the 2nd Respondent to whom service of notice is not complete in M.A. No. 965/2010 but on whom notice is served and is represented by learned Counsel in M.A. No. 962/2010 and we dispose of the appeals.

No doubt, there is a delay of 503 days in filing the application to set aside the exparte decree. Of course, the case of the Appellant is that she was made to understand that the matter will be settled. This is a case where joint counter affidavit was filed by all the three Respondents in the OP and thereafter, by reason of their default in appearance they were set exparte and ultimately exparte decree was passed. Learned Counsel for the Respondent would point out that the Court has decreed Rs. 2,96,000/- in all with 9% interest and at present the amount will come to Rs. 4,25,000/-. The reasons stated for condoning the delay in filing the application to set aside the exparte decree was that the Appellant was informed by Respondents 1 and 2 that the OP was filed at the time when they were residing separately and that at present they are residing together and they will initiate appropriate steps to withdraw the OP and that is why the Appellant did not pursue the OP.

Having regard to the need for an adjudicated decision, we feel that an opportunity can be given and in the circumstance we feel that in the interest of justice the exparte decree can be set aside against all the Respondents. Accordingly, we pass the following order.

We allow the appeals. I.A. No. 5034/2008 and I.A. No. 4049/2008 will stand allowed and the exparte decree will stand set aside as against the Respondents in the OP on condition that the Appellant will pay a sum of Rs. 2,000/- (Two thousand only) as costs in both the appeals to the Respondents and will further deposit a sum of Rs. 40,000/- (Forty thousand) within a period of one month from today. If the Appellant pays the costs in both the appeals as aforesaid as also deposit Rs. 40,000/-, the Family Court, Ernakulam will take up and dispose of the matter finally within a period of three months from the date on which the conditions imposed are reported to be complied with. In case any of the amounts are not paid/deposited the appeals will stand dismissed.