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2016 DIGILAW 327 (KER)

Sulochana B. R. v. Anil Jose

2016-03-21

C.K.ABDUL REHIM, SHAJI P.CHALY

body2016
JUDGMENT : Abdul Rehim, J. The above Mat. Appeal is instituted against a common order passed by the Family Court, Trivandrum in I.A. Nos.1281/2014 and 1282/2014 in O.P. No. 1020/2008. The appellant herein is the respondent in O.P. No. 1020/2008 which was filed by her husband, Sri. Anil Jose, who is the respondent herein. The said original petition was allowed by the court below since the appellant was set ex parte, on 14.8.2009. Much after passing the ex parte decree, Sri. Anil Jose expired on 16.1.2012. Thereafter the appellant filed interlocutory applications, I.A No. 543/2012 and 543A/2012 seeking to set aside the ex parte decree after condoning delay of 914 days. Those applications were posted for consideration before the court below on 17.3.2014. But due to absence of the appellant herein, those applications were dismissed. 2. The present petitions, I.A. Nos. 1281/2014 and 1282/2014 are filed seeking restoration of I.A No. 543/2012 and 543A/2012. By virtue of the order which is impugned herein, the Family Court had dismissed the above said interlocutory applications. It is aggrieved by the said order, the above appeal is filed. 3. It is noticed that the respondent herein is cited as Sri. Anil Jose, represented by Smt. Shiny Rose. It is not possible to represent a dead person by any of his relatives, as next friend or guardian. On that ground itself, the appeal is not maintainable. Further, this court takes note of the fact that I.A Nos. 543/2012 and 543A/2012 were filed before the court below, after the death of Sri. Anil Jose. Hence those applications were not maintainable before the court below. Specific case of the appellant before the court below is that, she came to know about the ex parte decree only on the death of Sri. Anil Jose. If that be so, she could have sought impleadment of the legal heirs in order to pursue any such applications. Since I.A Nos. 543/2012 and 543A/2012 itself were not maintainable, the present applications, I.A. Nos. 1281/2014 and 1282/2014 need not be considered. 4. Learned counsel for the appellant pointed out that Smt. Shiny Rose, who is the sister of the deceased Sri. Anil Jose had appeared before the court below in I.A. Nos.1281/2014 and 1282.2014. It is evident from the impugned order that the said lady had appeared and opposed the applications before the court below. 4. Learned counsel for the appellant pointed out that Smt. Shiny Rose, who is the sister of the deceased Sri. Anil Jose had appeared before the court below in I.A. Nos.1281/2014 and 1282.2014. It is evident from the impugned order that the said lady had appeared and opposed the applications before the court below. But it is evident that she is not made a party in the present proceedings before the court below. Therefore no relief can be sought against her. It is pertinent to note that the court below had specifically found that I.A. Nos. 543/2012 and 543A/2012 were filed without impleading legal representatives of the deceased original petitioner before the court below. Therefore, it cannot be said that those applications filed to set aside the ex parte decree can be maintained before the court below, which is filed against a dead person. 5. Smt. Shiny Rose had appeared in person before this court, pursuant to notice issued in the delay condonation application (CMA. No. 3793/2015). She submitted that the decree was obtained long before the death of her brother and that now the attempt of the appellant is only to harass her, by unnecessarily dragging her in different legal proceedings. As already observed, the application filed before the court below to set aside the ex-parte decree was not maintainable. Hence we do not find any merit in this appeal. 6. Consequently, the appeal fails and the same is hereby dismissed. 7. However, we make it clear that the dismissal of the above appeal will not stand in the way of appellant seeking appropriate remedy before the court below.