JUDGMENT

Dated this the 8th day of January 2021 This appeal has been filed seeking to set aside the order in I.A.No.64/2016 dated 5.10.2018 on the files of the Family Court, Chavara. The first respondent in O.P.No.936/2013 is the son of the appellant. The marriage of the son of the appellant was solemnised on 02.04.2006. The relationship between the son of the appellant and the original petitioner got strained.

2. O.P.No.1467/2010 filed by the respondent herein before the Family Court, Kollam and later transferred to Family Court, Chavara and renumbered as O.P.No.936/2013. According to the respondent, she was given 25 sovereigns of gold ornaments and Rs.50,000/- as cash at the time of marriage. It is alleged that the son of the appellant misappropriated the amounts and gold. Hence the original petition was filed seeking for return of gold and money. O.P.No.936/2013 was decreed ex parte on 15.10.2013. Appellant preferred I.A.No.64/2016 to set aside ex parte decree along with I.A.No.65/2016 to condone the delay of 817 days in preferring the petition for setting aside the ex parte decree.

3. Appellant is a chronic heart-patient and is under treatment at various hospitals and had undergone cardiac surgery in the year 2015. On 05.10.2018 the Family Court allowed the petition to condone the delay and the petition to set aside the ex parte decree was allowed on condition of paying cost of Rs.10,000/- to the respondent and also deposit of Rs.60,000/- out of the decreetal amount. The appellant was ready to pay the cost but was unable to raise the amount of Rs.60,000/- for deposit as part of the decree debt. So aggrieved by the impugned order, this original petition has been filed.

4. Hence the petition happened to be dismissed. Aggrieved by the same, petitioner came up with this appeal.

5. Notice was issued to the respondent.

6. On going through the impugned order itself, it could be seen that only one of the respondents filed the petition to set aside the exparte decree along with petition to condone the long delay of 817 days in filing the petition to set aside exparte decree. Though the learned Family Court was pleased to allow the petition on payment of costs of Rs.10,000/- and also on deposit of Rs.60,000/- out of the decreetal amount of Rs.5 lakhs, that amount was not paid and accordingly those petitions stand dismissed. The original petition is also of the year 2010. The learned Family Court actually had given an opportunity to the petitioner to contest the matter by allowing the petition on payment of cost of Rs.10,000/- and on deposit of Rs.60,000/- out of the decreetal amount of Rs.5 lakhs. Without paying and complying with that order the appellant straight away moved this Court.

7. The respondent is none other than the daughter-in-law of the petitioner and the original petition also seems to have been filed for recovery of gold ornaments and money given at the time of marriage.

8. Heard both sides.

9. When the appeal came up for hearing, the learned counsel for the petitioner submitted that she is willing to comply the order and pay the amount as directed by the learned Family Court. But the records would go to show that original petition was originally filed by the respondent in the year 2010 before the Family Court Kollam and subsequently it was transferred to Family Court, Chavara and renumbered as O.P.No.936/2013. The original petition is also for return of gold ornaments and money. The Mat. Appeal was also pending here for more than two years, thus frustrating the cause of the respondent. So taking into account the facts and circumstances, we are inclined to allow the appeal on condition that the petitioner- 2nd respondent shall pay cost of Rs.15,000/- (Rupees fifteen thousand only) to the respondent and deposit Rs.60,000/- (Rupees sixty thousand only) out of the decreetal amount, within a period of one month starting from the date of receipt of a copy of this judgment. On failure of the petitioner to comply with the above dir