HARIS Vs. RABIA

JUDGEMENT

(1.) The petitioners herein are the respondents in O.P.No. 105/2014 on the files of the Family Court, Ottappalam. The said Original Petition was instituted by the respondents herein who are the divorced wife and minor child of the 1st petitioner. The Original Petition was filed seeking realization of the gold ornaments and past maintenance to the respondents 1 and 2. The said Original Petition was decreed ex-parte by the Family Court on 04.11.2015, because the counsel for the petitioners herein reported no instructions. After a lapse of time, the petitioners approached the Family Court in I.A.No.751/2016 seeking to set aside the ex-parte decree, accompanied with I.A.No.750/2016 filed seeking for condonation of delay of 179 days occurred in filing the application to set aside the ex-parte decree. The Family Court considered both the interim applications and passed a common order on 30.11.2016. The Family Court, even though found that there is no merit in the reasons mentioned for non prosecution of the case, took a liberal view and found that one more opportunity can be given to the petitioners to contest the case on merits, subject to conditions. Accordingly, it was ordered that, the delay will be condoned and the ex-parte decree passed against the petitioners will be set aside subject to conditions of the petitioners paying a sum of Rs 3,000/ to the respondent as cost, within one week from the date of the said order. It is a self working in which it was clarified that, on failure of payment of the cost, the applications shall stand dismissed. Therefore, the IAs were posted after a week.

(2.) It is stated in this Original Petition that the petitioners have failed to comply with the order passed by the Family Court on 30.11.2016. Consequently, I.A.Nos.750/2016 and 751/2016 were dismissed by that Court on 14.12.2016. Afterwards, when the petitioner received notice under Order 21 Rule 66 CPC in the Execution Petition filed by the respondent herein, the above Original Petition was filed seeking direction from this Court to modify the order of the Family Court, dated 30.11.2016 and to permit the petitioners to pay the cost imposed in the said order, within a time to be stipulated by this Court.

(3.) Heard, Counsel on either sides. The Counsel appearing for the respondents herein had pointed out that there is deliberate latches and inordinate delay on the part of the petitioners. It is pointed out that the petitioners have not approached the Family Court seeking extension of the time limit stipulated for payment of the cost, within any reasonable time. Since the condition stipulated in the said order remains not complied with and since the Family Court already dismissed those interim applications for non compliance of the condition, the petitioners are not entitled to seek any remedy under Article 227, is the contention.