SAJITH Vs. SATHI

JUDGEMENT

(1.) C.K. Abdul Rehim, J: Mat. Appeal No.1082/2015 is filed against the order of the Family Court, Palakkad in IA Nos.241/2014 & 242/2014 in OP No.746/2009, dated 29 -10 -2014. OP No.746/2009 was filed by the respondent herein before the Family Court seeking return of gold ornaments. The appellant who is respondent before the court below entered appearance and filed written statement. Subsequently the Family Court allowed joint trial of OP No.746/2009 along with OP No.766/2009, which is another case instituted by the respondent herein seeking for dissolution of the marriage. Evidence was let in by treating OP No.766/2009 as the leading case. The respondent herein was examined before the court below as PW1. Documents were marked as Ext.A1 to A3. But the appellant herein failed to cross -examine the respondent, despite adjournment granted for the said purpose on condition of payment of cost. Hence the court below closed the evidence and proceed further to pronounced the judgment on taking into consideration of the pleadings and evidence, and also taking note of the contentions in the written statement. The original petition was decreed on 26 -04 -2012. Thereafter the appellant herein filed IA No.242/2014 under Order IX Rule 13 of Code of Civil Procedure to set aside the ex -parte decree, along with IA No.241/2014 seeking for condonation of delay of 365 days occurred in filing the said application. The court below had dismissed IA No.241/2014 through a cryptic order stating that, "since decree is executed, this petition is not maintainable so it is dismissed". Consequently IA No.242/2014 was also dismissed stating that, "since IA No.241/2014 dismissed, this petition is also dismissed". It is aggrieved by the above said order, this appeal is filed.

(2.) OP (FC) No.542/2015 is filed seeking to set aside Ext.P7 order passed by the Family Court in EA No.52/2015 in EP No.13/2013 in OP No.746/2009. E.A. No.97/2015 is filed seeking stay of the entire proceedings in the execution petition for enabling the petitioner to obtain stay in Mat. Appeal No.1082/2015. In the affidavit filed in support of the said application it was mentioned that an appeal against the ex -parte decree passed in OP No.746/2009 is filed before this court, along with an application to condone delay in filing appeal. It is stated that the petitioner is expected to get favourable orders in the said appeal and in the meanwhile if the execution is proceeded it will cause irreparable injuries, hardship and loss. Hence it is requested to stay the entire proceedings in the execution petition for a reasonable time for enabling the petitioner to obtain interim order of stay from this court in the appeal.

(3.) When the E.A. No.97/2015 came up for consideration on 29 -10 -2015, the Family Court passed the following order; "No stay so far. Heard. Petition cannot be allowed, hence dismissed". According to the petitioner the court below had dismissed the interim application in the execution petition without proper appreciation of the factual circumstances prevailing.