SUSHAMA K T ALIAS SUMA Vs. RAJAN NAIR

JUDGEMENT

(1.) THIS writ petition is filed seeking the following reliefs:

(2.) BRIEFLY put, the case of the petitioner is as follows: Petitioner is the divorced wife of the respondent. She filed O.P. 925/2001 against the respondent for recovery of money and gold ornaments. She also filed M.C. 178/2001 for maintenance. O.P.651/2002 filed by the respondent for getting a decree of divorce was dismissed for default. O.P.925/2001 was partly allowed by Ext.P1 order. During trial respondent filed objection and cross examined the petitioner and her witnesses. The respondent himself was examined as Rw1. Exts.R2 to R9 were marked. Subsequently he was set exparte. The Court passed Ext.P1 order partly allowing the claim of the petitioner. The respondent wilfully evaded the notices and civil arrest warrants issued in Ext.P2 execution petition. Subsequently, the decree was transferred to Bandra Family Court where the respondent is working and Ext.P3 execution petition was filed by the petitioner before the Bandra Family Court, Mumbai. E.P amount as per Ext.P3 was 2,98,000/-. Respondent's salary was already attached and the petitioner received a sum of Rs.1,44,500/- from the deposited amount. Respondent filed Ext.P4 petition for getting 5 = sovereigns which was alleged to be in the custody of the petitioner. Petitioner filed O.P.1442/2005 for getting a decree of divorce and she served the notice to the respondent by affixture. She remarried. It is after 2 = years respondent filed Exts.P6 and P7 on 26.4.2008 for setting aside the exparte order and petition to condone the delay of 994 days. Petitioner filed objection. However the Court has allowed the application on payment of cost of Rs.1,000/-. Ext.P10 is the order which is challenged in this writ petition.

(3.) WE must notice certain facts. In Ext.P1 order the Court below has proceeded on the basis that the respondent did not appear in court much less let in evidence in support of his case though the O.P was posted several times for his appearance and evidence. He was lastly set exparte. This is a case where the respondent had adduced evidence by examining Rw1 and Rw 2 in 2004. The counsel for the respondent did not appear on 18.6.2005 and therefore Ext.P1 order is passed on 1.7.2005. WE further notice that as admitted the petitioner has already realised a sum of Rs.1,44,500/- from the amount deposited in execution proceedings by the Bandra Family Court, Mumbai. WE further notice that this Court on 7.4.2009 while admitting the writ petition had stayed the impugned order, but, directed that the execution proceedings can continue but with the rider that the amounts if realised shall not be released to the petitioner until further orders of this Court. Therefore, this is a case where the petitioner has already realised Rs.1,44,500/- and execution proceedings were continued in terms of order and the execution petition itself has been closed. Of course, the balance amounts has not been released to the petitioner.