Pradeep Vasu and Savithri Vasu vs Jiji

R. Basant, J.—This appeal is directed against an ex parte order directing the appellants herein to pay a total amount of Rs. 1,04,000/- along with interest and cost. The respondent/wife is the claimant and the appellants, her husband and mother-in-law, were the respondents before the court below. The appellants herein were set ex parte and the court below proceeded to pass the impugned ex parte order. Challenge is raised in this appeal against the said impugned ex parte order.

The crux of the contention is that the appellants have been wrongly set ex parte. To a pointed query by us it is submitted that an application was filed to set aside the ex parte order after condoning the delay of 183 days in filing the petition. That petition was allowed by the court below directing payment of an amount of Rs. 10,000/-, which was permitted to be adjusted towards maintenance amount payable under an order passed in M.C. No. 161 of 2000. That amount was not paid and hence the court below had proceeded to dismiss the applications for condonation of delay and for setting aside the ex parte order.

A copy of that common order dt. 11.11.2005 in I.A. 2303 of 2005 and I.A. 2304 of 2005 in O.P. 1023 of 2003 is placed before us for our perusal. That order has not been challenged. But notwithstanding the omission to challenge the said order, we reckon that this appeal is virtually an attempt to challenge the said order also.

We are informed that there was an earlier order of attachment and to avoid that order of attachment the amount due under the impugned decree has been deposed in a bank and the fixed deposit receipt has been made available to the Court. Satisfaction of the decree to be passed is thus assured by the amount, which is lying in deposit in the bank, it is submitted and accepted....

Learned Counsel for the respondent opposes this appeal vehemently. He argues that for the past seven years the respondent has not obtained any relief. If the court were to allow this appeal and set aside the ex parte order, appropriate conditions may be imposed, it is prayed.

We have considered all the relevant circumstances. We take note of the fact that the appellants had remained ex parte, that their application to set aside the ex parte order was filed with a delay of 183 days, that the said applications were allowed on terms, that the said terms were not complied with and that led to those applications being dismissed. We are satisfied that subject to appropriate terms and conditions this appeal can be allowed, the impugned order can be set aside and the appellants can be given an opportunity to raise their contentions and seek a contested order in the Original Petition pending before the Family Court.

In the result:

a) This appeal is allowed subject to conditions.

b) The impugned order shall stand set aside and the court below shall dispose of the O.P. afresh on condition that the appellants deposit an amount of Rs. 10,000/- as cost before the court below on or before 30.10.2010.

c) The parties shall appear before the court below on 1.11.2010. If the amount has been deposed, the court shall immediately release that amount to the respondent herein. Thereupon the court shall proceed to dispose of O.P. 1023 of 2003 as expeditiously as possible - at any rate, within a period of three months from 1.11.2010.

d) If the cost of Rs. 10,000/- is not deposited by 30.10.2010, the court below shall record that fact on 1.11.2010 and thereupon the impugned order shall stand revived and continue to remain in force. The court below shall thereupon proceed with the execution of the impugned order expeditiously.