OMANA Vs. MALLIKA AND ORS.

JUDGEMENT

(1.) The above Mat.Appeal is instituted against an order passed by the Family Court, Thodupuzha in I.A. No. 370 of 2012 in O.P. No. 84 of 2007, dated 15.5.2013. O.P.84 of 2007 was instituted before the Family Court by the respondents herein, who are the wife and children of the 1st respondent before the Family Court, who is not made a party in I.A. No. 370 of 12 or in this appeal. In the original petition, the respondents were seeking return of gold ornaments, declaration of title with respect to certain immovable properties, cancellation of certain documents and a permanent prohibitory injunction etc. Allegation was that the husband of the 1st respondent, who is the 1st respondent in the case, had executed a gift deed in favour of the 1st respondent herein with respect to the immovable property, during the year 2003 and thereafter the 1st respondent was in possession of the said property. But due to the vengeance against the 1st respondent herein, the 1st respondent before the Family Court had executed another deed on 9.7.2003, cancelling the gift deed executed earlier. Thereafter the said property was transferred to a person named Ratheesh Kumar by virtue of Document No. 1225 of 2003. The property was further transferred to the name of the appellant herein through Document No. 1288 of 2003. The appellant herein was cited as the 3rd respondent in the said original petition before the court below. It is stated that, initially the respondents herein have instituted another original petition seeking the very same relief before the Family Court, Thrissur as O.P. No. 1016 of 2013. That court had ordered to return the case, finding that the said court lacks jurisdiction. It is alleged that the respondents, without complying with the procedure contemplated under Rule 10A of Order VII of the Code of Civil Procedure, had instituted a fresh original petition as O.P.84 of 2007 before the Family Court, Thodupuzha. According to the appellant, she had not received any notice from the Family Court, Thodupuzha in O.P. No. 84 of 2007 and she was totally unaware about filing or pendency of the above case, till 25.6.2012. On the said date, son of the appellant got information from an employee of the Family Court that an ex-parte order was passed against her. On the enquiries made by the appellant it was revealed that O.P.84 of 2007 was decreed ex-parte on 26.3.2012. It is alleged that the respondents have purposefully shown a wrong address of the appellant in the original petition filed before the Family Court. It is mentioned that the appellant herein is a bona fide purchaser of the immovable property for valuable consideration.

(2.) Under the above mentioned circumstances, the appellant herein had approached the Family Court in I.A. No. 370 of 2012 seeking to set aside the ex-parte decree. But the court below had dismissed the interim application through the order impugned in this appeal. It is aggrieved by the dismissal of the application to set aside the ex-parte decree, this appeal is filed.

(3.) Contention of the appellant is that, despite specific findings arrived by the court that no notice was served on the appellant, the Family Court had dismissed the application to set aside the ex-parte decree, stating totally extraneous reasons. It was also pointed out that the Family Court had omitted to take note of the fact that the original petition was instituted without re-presentation of the case which was returned by the Family Court, Thrissur and without compliance of the procedure contemplated under Rule 10A of Order VII CPC. It is contended that the Family Court had failed to exercise its jurisdiction in a judicious manner by considering the relevant aspects for deciding the issue as to whether the ex-parte decree need to be set aside or not.