SURESH KUMAR Vs. INDU W/O SURESH KUMAR

JUDGEMENT

(1.) The above appeal is instituted by the respondents in OP(HMA)No.1027/2013 on the files of the Family Court, Mavelikkara. The respondent herein is the petitioner before the Family Court. The Original Petition was initially filed before the Family Court, Alappuzha as OP No.641/2012, which was subsequently transferred to the court at Mavelikkara. The Original Petition was filed seeking for dissolution of the marriage existing between the 1st appellant and the respondent, on the ground of cruelty, under Section 13(1) (ia) of Hindu Marriage Act, 1955. Other reliefs sought for is to return gold ornaments worth 326.710gms, scheduled in the petition; and an amount of Rs.2,50,000/- along with interest and also for return of certain movables scheduled as item No.2 in the Original Petition. Through the impugned order, the Family Court had decreed the suit by setting the appellants exparte. The Family court found that, OP(HMA) No.1027/2013 was once decreed ex-parte on an earlier occasion, on 16.12.2013. When the respondent had initiated steps for executing the decree on the basis of that decree, the appellants filed Mat.Appeal No. 831/2015 before this court. This court allowed the said appeal and set aside the ex-parte decree, subject to condition of the appellants paying cost of Rs.15,000/- to the respondent. This court had also directed the Family Court to dispose of the case afresh, within a period of six months. The ex-parte decree was then set aside on the payment of the cost ordered, and the appellants have filed objections in the case. Even though settlement through mediation was attempted, it failed. Thereafter when the case was posted for trial, the appellants have not turned up. Hence they were again declared ex-parte. The Family Court had examined the respondent as PW1 and marked Exts.A1 to A8 documents and accordingly decreed the Original Petition. The appellants are challenging the said decree in this appeal.

(2.) In the counter affidavit filed by the respondent it is pointed out that, during pendency of the Original Petition before the Family Court, Alappuzha as OP No.641/2012, there was a settlement arrived between the parties, on 11.3.13. But the appellants denied to execute the settlement agreement and hence the matter was proceeded by the Family Court. After transfer of the case to the Family Court at Mavelikkara, the appellants were declared ex-parte on two occasions. The Family Court had set aside both ex-parte orders and the appellants were permitted to contest the case on merits. Subsequently, on failure of the appellants, the Original Petition was decreed on 16.12.2013. It is only by virtue of the judgment rendered by this court in the earlier Mat.Appeal that the ex-parte decree was set aside. It is stated that, after remand of the matter by this court, the appellants again approached the respondent for a settlement and as part of the settlement arrived, the Ist appellant gave a cheque for Rs.4,25.000/-. But when presented for encashment, the cheque was dishonoured. Hence the case was proceeded further and when it was posted for trial the appellants again failed to appear. Hence the impugned decree was passed, is the contentions.

(3.) It is stated in the counter affidavit that, after passing of the impugned decree, when the respondent took steps for execution, the appellants filed I.A Nos.1556/16 and 1557/16, for setting aside the ex-parte decree and for condonation of the delay occurred in filing the said application. Those applications were dismissed by the Family Court on 28.4.17, again for default of the appellants. According to the respondent, the present appeal is filed by suppressing the fact of dismissal of those interim applications. It is further stated that, there was an attachment ordered by the Family Court with respect to certain immovable properties of the appellant and in the execution proceedings there is an order for attachment of the salary of the Ist appellant. An amount of Rs.5,00,000/- has been attached from the salary of the Ist appellant.