The defendant must personally apply to set aside an ex parte decree and provide reasons within his personal knowledge, and delegation of this responsibility to a Power of Attorney Holder is not acceptable in legal context.

Mary Joseph,J:

The common respondent in O.P.Nos.71/2005 and 673/2005 respectively has approached this court seeking to set aside the common orders passed by the Family Court, Ernakulam (for short 'the court below') in I.A.Nos.1544/2010 and 1545/2010 and I.A.Nos.1547/2010 and 1548/2010 in respective original petitions on 29.10.2010.

2. One among the orders under challenge was passed by the court below in the interlocutory applications numbered as I.A.No.1544/2010 seeking to set aside the ex parte decree passed on 8.7.2008 in O.P.No.71/2005 and I.A.No.1545/2010 seeking to condone the delay of 598 days occurred in filing the said application. The second order under challenge was passed by the court below in the interlocutory application numbered as I.A.No.1547/2010 seeking to set aside the ex parte decree passed on 8.7.2008 in O.P.No.673/2005 and I.A.No.1548/2010 seeking to condone the delay of 598 days occurred in filing the said application.

3. O.P.No.71 of 2005 was filed by the respondent herein as petitioner before the court below seeking a decree of maintenance under Section 18(2) of the Hindu Adoption and Maintenance Act, 1956. O.P.No.673 of 2005 was filed by the respondent herein as petitioner before the court below seeking a decree for realisation of money from the respondent therein under Section 7 of the Family Courts Act, 1984. Due to non-contest of the original petitions by the common respondent, he was set ex parte and ex parte decrees were passed in the petitions on 8.7.2008. Thereupon, interlocutory applications have been moved as I.A.Nos.1544/2010 and 1545/2010 in O.P.No.71 of 2005 and I.A.Nos.1547/2010 and 1548/2010 in O.P.No.673 of 2005 with the respective prayers for condoning the delay and setting aside the ex parte decree.

4. The affidavits in support of these applications have been sworn to by the brother-in-law of the respondent in his capacity as his Power of Attorney Holder.

5. The Power of Attorney Holder had sworn to the effect that the respondent had been to Qatar during March 2008 in connection with his employment as an unskilled labourer for a period of one year on the basis of a contract of employment. The term of contract was extended till March 2009 and further till March 2010. The ex parte decree was passed by the court below on 8.7.2008. The counsel for the respondent in the original petitions obtained avocation as Judicial Member of the Central Administrative Tribunal and had left Kerala and therefore, he could not pursue the original petition at the appropriate time. There is no willful laches on the part of the respondent in the respective original petitions to contest the case. The delay of 598 days was occurred not due to any willful act or negligence on his part.

6. The respondent herein (the petitioner in the respective original petitions) resisted the applications contending that the respondent before the court below was set ex parte on two earlier occasions also and got those orders set aside by filing applications. E.P.Nos.23/2009 and 22/2009 have been filed by them in the respective original petitions to get the decreed amount realised and admittedly, service against the respondent therein (the appellant herein) had been completed by affixture of notice at his residence, which is the last known address of his and therefore, the applications filed now are liable to be dismissed for want of bona fides. The appellant had also been served with summons originally in the original petitions. He had also entered appearance and filed objections refuting the averments of the petitioner (respondent herein). The original petitions thereafter were posted by the court below on 08.07.2008. The respondent did not appear before the court on 08.07.2008. Therefore, he was set ex parte by the court below in both the original petitions and ex parte decrees were passed on the same day. There is clear laches and negligence on the part of the appellant. The applications are liable to be dismissed for wan