BIJAYA SHANKAR GUPTA Vs. ROHIT KUMAR SAHOO

JUDGEMENT

(1.) In this writ petition, the petitioner challenges the ex parte order dated 7th January, 2013 passed by the learned Judge, Family Court, Rourkela in Execution case No. 14 of 2012 directing the present petitioner to hand over the custody of the child, namely, Barun @ Yash Raj to his father within three months hence. While issuing notice to the opposite party No. 1 on 2nd April, 2013 this Court also stayed the further proceeding of the execution case.

(2.) The facts leading to the present writ petition are as follows:

(3.) Learned counsel for the petitioner submitted that admittedly opposite party No. 1, is the father of the child and he married to the daughter of the present petitioner. The child was born at Rourkela Hospital on 30th October, 1994. Thereafter, the daughter of the present petitioner died in 2001 leaving the minor son with him. Since then he has been taking care of the minor, child. Earlier C.P. No. 132 of 2002 filed by opposite party No. 1 under Section 10 of the Guardians and Wards Act was disposed of on 25th August, 2004 by the learned Judge, Family Court rejecting his application to hand over the custody of the minor child to him. After rejection of the said application, in the year 2004 the opposite party No. 1 has filed C.P. No. 255 of 2010 under Section 25 of the Guardians & Wards Act. Though notice was received by the present petitioner and he has participated in a conciliation proceeding at the first instance, the ex parte judgment was passed due to his non-appearance and in the application under Order 9, Rule 13 of the Code of Civil Procedure, the present petitioner has explained the circumstances which is pending consideration. Therefore, a chance may be given to the present petitioner to contest the proceeding on merit.