IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 15^TH DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943 MAT.APPEAL NO. 556 OF 2014 AGAINST THE ORDER DATED 29.5.2014 IN IA 984/2013 & 992/13 IN OP 844/2009 OF FAMILY COURT, NEDUMANGAD APPELLANT/RESPONDENT:

SUDHEER, AGED 31 YEARS, S/O. MUHAMMED KANNU, RESIDING AT PANANTHAZHIKOM VEEDU, AYIROOR VILLAGE, THIRUVANANTHAPURAM DISTRICT.

BY ADV SRI.J.S.AJITHKUMAR RESPONDENTS/PETITIONERS:

1 RASEENA BEEGUM, AGED 34 YEARS KOCHUKUNNIL VEEDU, MUTTAPPALAM, NADAYARA, VARKALA.P.O., THIRUVANANTHAPURAM.695141

2 SHERIN. AGED 14 YEARS D/O. RASEENA BEEGUM, KOCHUKUNNIL VEEDU, MUTTAPPALA, NADAYARA, VARKALA.P.O., THIRUVANANTHAPURAM.695141

3 SHEREENA AGED 13 YEARS D/O. RASEENA BEEGUM,KOCHUKUNNIL VEEDU, MUTTAPPALA, NADAYARA, VARKALA.P.O., THIRUVANANTHAPURAM.695141

4 SALMAN, AGED 9 YEARS S/O. YAHIS @ NASIM,KOCHUKUNNIL VEEDU, MUTTAPPALA, NADAYARA, VARKALA.P.O., THIRUVANANTHAPURAM.695141 R2 TO R4 REPRESENTED BY THIER MOTHER RASEENA BEEGUM BY ADVS. SMT.K.KUSUMAM FOR CAVEATORS SRI.BASANT BALAJI SMT.K.KUSUMAM SMT.S.S.MEERA SMT.RENY ANTO THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON

13.09.2021, THE COURT ON 15.9.2021 DELIVERED THE FOLLOWING:

J U D G M E N T Dated this the 15^th day of September, 2021 Kauser Edappagath, J.

This appeal has been preferred challenging common order passed by the Family Court, Attingal (for short, 'the court below') dated 29/5/2014 dismissing the application to set aside the ex parte decree as well as the application to condone the delay in filing the application to set aside the ex parte decree.

2. The appellant herein is the first respondent's husband's brother. The respondents 2 to 4 are the children of the first respondent. The respondents filed original petition as OP No.844/2009 at the court below against the appellant, the husband of the first respondent and another brother of the appellant for recovery of gold ornaments and cash alleged to have been misappropriated by them. The appellant and his brothers, who are respondents 1 to 3 in OP No.844/2009, were set ex parte on 29/3/2010 and an ex parte decree was passed on 9/4/2010. After the lapse of 1154 days, the appellant filed IA Nos.984/2013 and 992/2013 to set aside the ex parte decree and to condone the delay of 1154 days in filing the application to set aside the ex parte decree. The appellant in the applications alleged that he was not served with notice in OP No.844/2009 and he was not aware of the said proceedings. He further alleged that he came to know of the decree from his relatives when the execution proceedings were initiated. The respondents opposed the applications. It was contended that there was no bonafides in the applications and the reason shown for condonation of the delay as well as to set aside the ex parte decree was absolutely false. It was further contended that the appellant was served with notice and he engaged a lawyer to defend the case. The court below permitted both parties to adduce evidence. RW1 and RW2 were examined and Exts.A1 and A2 were marked on the side of the appellant. Ext.C1 was marked as court exhibit. After hearing both sides, the court below dismissed both the applications as per the impugned common order. This appeal has been preferred challenging the said common order.

3. We have heard Sri.J.S.Ajith Kumar, the learned counsel for the appellant and Smt.K.Kusumam, the learned counsel for the respondents.

4. Admittedly the appellant was employed at Saudi Arabia. According to him, he went to Saudi Arabia during 2006 and he came back to India on availing amnesty of Saudi Government only on 6/11/2013. Ext.C1 is the served copy of notice in OP NO.844/2009 to the appellant through the process server who was examined as RW2. It would show that the notice was served to the appellant on 15/10/2009. RW2, the process server, gave evidence that he served notice to the appellant directly. He identified E