Femeer vs Asura

C.Pratheep Kumar, J

This is a petition filed by the respondent in O.P.No.947/2017 on the file of the Family Court, Palakkad, against the order dated 18.10.2021 in I.A.1743/2019.

The respondent is the wife of the petitioner herein. She filed the above O.P before the Family Court for return of gold ornaments and realisation of patrimony. The above O.P was decreed ex parte by the Family Court on 12.7.2019. The petitioner filed I.A.1743/2019 for setting aside the ex parte decree and I.A.No.1742/2019 for condoning the delay in filing the application for setting aside the ex parte decree. As per the impugned order, the Family Court allowed those applications on condition that the petitioner shall deposit 50% of the decree debt as on the date of the impugned decree or furnish security to the satisfaction of the Family Court.

Aggrieved by the above order the petitioner approached this Court contending that the above condition imposed on him for setting aside the ex parte decree is legally unsustainable. Therefore, the learned counsel for the petitioner prayed for setting aside the impugned order to the extent it imposes condition for depositing 50% of the decree debt or to furnish security for the decree debt. On the other hand, the learned counsel for the respondent would submit that though she filed the O.P before the Family Court as early as in the year 2017, the matter is being protracted by the petitioner and therefore, according to the respondent, the condition imposed by the Family Court is liable to be sustained.

As argued by the learned counsel for the respondent, the respondent filed the O.P before the Family Court in the year 2017 for return of her gold ornaments and realization of patrimony. Since the petitioner herein remained ex parte, the Family Court passed an ex parte decree on 12.7.2019. Thereafter, he approached the Family Court for setting aside the ex parte decree and for condoning the delay. It was in the above context, the Family Court imposed a condition for setting aside the ex parte decree. Now the question to be considered is whether the condition imposed by the Family Court for setting aside the ex parte decree is unreasonable and harshly excessive ?

In the decision in V.K. Industries and Others v. M. P. Electricity Board, Rampur, Jabalpur, 2002 (3) SCC 159, in a suit for recovery of money, the High Court passed an order setting aside the ex parte decree subject to the condition that the defendant shall, within a period of two months, deposit a sum of Rs.2,00,000/- with the trial Court and shall furnish bank guarantee for the remaining sum claimed in the suit within a period of two months. The High Court further directed that the amount so deposited shall be liable to be disbursed in accordance with the final order that may be passed in the suit. When the matter was taken up before the Hon'ble Supreme Court, the Court held that while restoring a case, the Court may impose conditions to deposit costs or the decretal amount or some portion thereof or to ask the defendant to give security but such conditions should be reasonable and not harshly excessive. In the above case, the defendant was directed to deposit a sum of Rs.2,00,000/- and to furnish a bank guarantee for the remaining sum claimed, which according to the Hon'ble Supreme court, are onerous, harsh and unreasonable in the facts and circumstances of the case.

In the instant case, the respondent filed the above O.P for return of gold and patrimony in the year 2017. Since the petitioner remained ex parte before the trial Court, even after the expiry of 6 1/2 years, the respondent could not enjoy the fruits of the decree that may be passed in the O.P. In the impugned order, the Family Court has given optin to the petitioner either to deposit 50% of the decree amount or to furnish security for the decree amount, which is not at all reasonable or harshly excessive. Therefore, we do not find any reason to interfere with the impugned order and as such, this O.P is liable to be dismissed.

In the result, the Original Petition is dismissed.