A decree rendered on merits cannot be set aside under Order IX, Rule 13; the appropriate remedy is to file a regular appeal.

JUDGMENT

P .G.Ajithkumar, J. The order dated 16.12.2021 in I.A.Nos.1743 and 1744 of 2017 in O.P.No.320 of 2015 on the file of the Family Court, Ettumanoor is under challenge in this appeal filed under Section 19 (1) of the Family Courts Act , 1984.

2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

3. O.P.No.320 of 2015 was filed by the respondent seeking a decree for return of gold ornaments. The respondent claimed that she was entitled to get back 868 grams of gold ornaments or its money equivalent of Rs.22,56,800/- from the petitioner. The petitioner had filed objection denying the liability. The Family Court, Ettumanoor as per judgment dated 30.09.2016 decreed O.P.No.320 of 2015. The petitioner has filed I.A.Nos.1743 and 1744 of 2017 seeking to condone the delay of 377 days and to set aside the exparte decree.

4. The respondent has filed objection to both interlocutory applications. She contended that the delay was not 377 days, but it is 490 days. The reasons stated for the delay was said not genuine.

5. The Family Court after considering the rival contentions held that the reasons stated for condoning the delay was insufficient. Accordingly, the Family Court dismissed both the interlocutory applications.

6. During the course of arguments, the learned counsel appearing for the respondent pointed out that the decree dated 30.09.2016 is not an exparte one, but it was rendered on merits and therefore a petition under Order IX, Rule 13 of the Code of Civil Procedure , 1908 could not be entertained. We have perused the judgment dated 30.09.2016. Paragraph 6 of the judgment reads as follows:

“6. Petitioner gave evidence as PW1 and marked Exts.A1 to A11 & A11(a) to prove her case. She was examined on commission. Before the commissioner the respondent had asked time for cross examining her. However, on 18.07.2016 when I asked him he submitted no cross.”

7. At the time when the respondent was examined as PW1, she was not cross-examined on behalf of the appellant. Another opportunity was seen afforded. But at that time, the respondent submitted that she did not want to cross-examine PW1. The appellant did not turn up thereafter to adduce evidence. Order XVII, Rule 3 of the Code says that where any party to a suit to whom time has been granted failed to produce his evidence, the court may, notwithstanding such default proceeded to decide the suit. If such party is absent on the subsequent day, the court may decide the suit in the mode prescribed in Order IX of the Code, that is to say pass an exparte decree.

8. In this case, the Family Court proceeded to decide O.P.No.320 of 2015 on merits. The appellant was present at the time when PW1 was examined. On a subsequent occasion, 18.07.2016, the appellant stated that he did not want of cross-examine PW1. It was in such circumstances, the Family Court passed the decree on merits. It is true that the court in such circumstances could have proceeded to decide the matter exparte. However, having decided the matter on merits and passed the decree on merits, the contention of the learned counsel for the respondent has merits. When the decree is not an exparte one, the provisions of Order IX, Rule 13 of the Code cannot be invoked for setting aside the decree.

The remedy of the appellant is to file a regular appeal.

9. The learned counsel appearing for the appellant pointed out that there occurred a long delay, mostly due to the pendency of I.A.Nos.1743 and 1744 of 2017 before the Family Court, and therefore if an appeal is filed, he would be obliged to explain the said delay, for no fault of him. It is a matter for the appellant to take up appropriately, if he proposes to file an appeal and is not a matter germane for consideration in this appeal.

In the circumstances, this appeal is dismissed holding that I.A.Nos.1743 and 1744 of 2017 in O.P.No.320 of 2015 are not maintainable.