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2025 DIGILAW 392 (KER)

AFSAL HUSSAIN S/o. abubacker v. RUKSEENA D/o. ahammed

2025-02-27

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

body2025
JUDGMENT : Devan Ramachandran, J. The petitioner is the respondent in O.P.No.247/2015 filed by the respondent – his divorced wife, seeking return of certain gold ornaments and sums of money. 2. It is virtually uncontested that the above said Original Petition had been decreed ex parte, at least thrice before the last of it being through Ext.P2 order. On each of the earlier occasions, the ex parte decree had been set aside and this was the same with respect to Ext.P2 also, which, the petitioner achieved through Ext.P6 order in I.A.No.1527/2019. Through the said order, the petitioner was directed to deposit Rs.11,50,000/-, as a condition to have Ext.P2 decree set aside; along with Rs.1,500/- as ordered in Ext.P5 order in I.A.No.1526/2019 – which was imposed as a condition to condone the delay of about 58 days in filing the application to have the decree set aside. 3. It is expressly conceded that the petitioner did not comply with any of the afore directions; and consequently, that the learned Family Court, Palakkad, issued Ext.P7 order, dismissing I.A.No.1526/2019. 4. Thereupon, citing medical reasons, the petitioner filed IA No.7/2023 to restore IA No.1526/2019; accompanied by IA No.6/2023, to condone the delay in filing the said application. These IAs are on record as Exts.P9 and P8, respectively. 5. The petitioner also filed IA No.1/2023, seeking to restore IA No.1527/2019; along with IA No.2/2023 seeking to condone the delay in filing it. The true copies of the said applications have been marked as Exts.P12 and P13 respectively. 6. However, the learned Family Court dismissed the afore applications through Exts.P10, P11, P14 and P15 orders; and the petitioner has approached this Court, impugning them as being illegal and unlawful. 7. This matter was considered by this Court for admission on 18.02.2025; on which day, presumably being aware of the hurdles in front of his client, Sri. V.A. Johnson offered that his client is willing to deposit the entire amount as per the decree, including interest and costs, to prove his bona fides; and offered that he will do it through a pay order to be produced before this Court. V.A. Johnson offered that his client is willing to deposit the entire amount as per the decree, including interest and costs, to prove his bona fides; and offered that he will do it through a pay order to be produced before this Court. We recorded this in our order of the said day, which is as follows: Sri.V.A.Johnson (Varikkappally) – learned counsel for the petitioner, submits that his client is willing to deposit the entire amount as per the decree, including interest and cost and that he will do so through a pay order to be produced before this Court within two days. In view of the afore undertaking, we allow the petitioner to take out notice to the respondent by special messenger. In the meanwhile, if the sale is to take place tomorrow (19.02.2025), the confirmation of the sale shall stand deferred until we pass final orders. Post on 21.02.2025. 8. Thereafter, on 21.02.2025, Sri.T.B.Hood appeared for the respondent and sought a day’s time to confer with his client. We thus permitted the petitioner to produce the Demand Draft, as recorded in the order dated 18.02.2025, before the Registry of this Court, to be kept in safe custody. The order of the said day is ut infra: Read order dated 18.02.2025. 2. Sri.V.A.Johnson (Varikkappallil) – learned counsel for the petitioner, has produced on record a Demand Draft for Rs.18 lakhs, as undertaken by him. 3. Sri.T.B.Hood – learned counsel for the respondent, seeks a day’s time to confer with his client as to the future course. 4. The Registry is directed to maintain the Demand Draft, produced along with the Memo of Sri.V.A.Johnson (Varikkappallil), dated 20.02.2025, in safe custody until further orders from this Court. Post on 24.02.2025. 9. Today, Sri.T.B.Hood – learned counsel for the respondent, submitted that his client will concede to all the impugned orders being set aside, solely to pave way for an opportunity for the petitioner to contest the Original Petition before the learned Family Court; however, on the specific condition that she is allowed to withdraw the decree debt as on today, which is approximately Rs.15,50,000/-. He requested that this be permitted, without insisting his client to offer security, but allowing her to provide a self-bond, since she has no property other than the one on which a residential house is under construction. 10. He requested that this be permitted, without insisting his client to offer security, but allowing her to provide a self-bond, since she has no property other than the one on which a residential house is under construction. 10. Sri.V.A.Johnson – learned counsel for the petitioner, expressly agreed to the afore course, saying that his client’s intention is only to contest the matter and prove his defence as per law. In view of the above consent, it is unnecessary for us to enter into the merits of any of the impugned orders; though, we must say, prima facie, that we see no error in them. The reasons which impel us to say so are discernible from the applications made by the petitioner himself; but we choose not to say anything further because of the concession now offered by the respondent. In the afore circumstances, and solely for the reasons above, we allow this Original Petition and set aside Exts.P10, P11, P14 and P15, as also Ext.P7 order; however, on condition that the petitioner will deposit an amount of Rs.15,50,000/-(Rupees fifteen lakhs fifty thousand only) before the learned Family Court, Palakkad - along with Rs.1,500/- (rupees one thousand five hundred only), being the costs as ordered in Ext.P5 - within a period of 14 days from the date of receipt of a copy of this judgment. For this purpose, we direct the Registry of this Court to return the Demand Draft - which is now kept in deposit by them as ordered by us - to the learned counsel for the petitioner forthwith, on an application to such effect being made. It is unnecessary for us to say, in view of the above concessions and undertaking, once the deposit as aforesaid is made, the learned Family Court will release the said amount to the respondent on her self-bond, subject to the final decision in the Original Petition. Needless to say, if the petitioner refuses or fails to make the deposit as ordered above, the benefit of this judgment will be lost to him; and this Original Petition will stand dismissed, with all the aforementioned orders confirmed. Needless to say, if the petitioner refuses or fails to make the deposit as ordered above, the benefit of this judgment will be lost to him; and this Original Petition will stand dismissed, with all the aforementioned orders confirmed. Since OP No.247/2015 before the learned Family Court, Palakkad, has been thus restored, we request the said Court to endeavour to dispose it of, adverting to it having been filed in 2015, within a period of six months from the date of receipt of a copy of this judgment, after affording necessary opportunities to both sides. We record that this time frame has been requested and acceded to by both sides.