Delay in seeking to set aside a decree must be substantively justified, especially when rights have crystallized.

JUDGMENT Devan Ramachandran, J.

The appellant suffered an ex parte decree in O.P.No.2041/2014, on the files of the learned Family Court, Thiruvananthapuram. Thereafter, on the assertion that he came to be aware of the decree against him only when he received notice in the Execution Petition levied by the respondent and when he was taken into custody to be produced in such proceedings, he filed I.A.No.185/2023, seeking that the said decree and the judgment be set aside, accompanied by I.A.No.1/2023 to condone the delay of 2890 days in preferring the former.

2. The learned Family Court dismissed both the afore applications, holding that the allegation of the appellant, that he did not receive notice in the Original Petition, is wrong and that he had done so on 11.02.2015, subsequent to which, he was set ex parte, with the judgment and decree having been issued on 20.10.2015. The appellant challenges the order of the learned Family Court dated 13.08.2025 in the aforementioned applications as being illegal and unlawful.

3. Sri.S.Krishna Kumar – learned counsel for the appellant, argued that the findings of the learned Family Court, that his client had received notice in the Original Petition on 11.02.2015, is not merely wrong, but impossible because, at that time, he was residing at ‘T.C.45/256, Sastri Nagar East-73, Karamana P.O., Thiruvananthapuram’; while, the summons issued to him was in his former address, namely ‘T.C.No.54/1045, ARA 123, Perappathy Veedu, Edagramom, Karumom, Thiruvananthapuram-2’. He pointed out that his client had specifically contended before the learned Family Court that the building in the latter address had been demolished in the year 2012 and that he was living in the former address since then, till 2020. He further argued that the signature of his client in the Acknowledgment Card relied upon by the learned Family Court is totally distinct from the real one; and hence that this is a fit case where the learned Court ought to have concluded that his client had received no notice, thus to be favoured with his plea for having the ex parte decree set aside.

4. In response, Sri.T.I.Unniraja – learned counsel for the respondent, argued that the afore assertions are inherently wrong and cannot be believed for the singular reason that the appellant had received notice in three other cases between the parties – namely O.P.(G&W)No.2971/2018, O.P.(Divorce)No.2972/2018 and M.C.No.30/2011 – in the same building, which he says had been demolished in the year 2012; and hence that it becomes manifest that his attempt is to resile from his obligation under the judgment and decree of the learned Family Court. He prayed that this Appeal be, therefore, dismissed.

5. We have examined the pleadings on record and it is indubitable that the appellant challenges not the judgment and decree of the learned Family Court, but only its order in I.A.No.185/2023 and I.A.No.1/2023, whereby, it refused to set aside the decree, or to condone the delay in filing the application for the same.

6. The learned Court has recorded that the appellant had received notice from it on 11.02.2015 and that his denial is incredulous and unbelievable. On the contrary, the assertion of the appellant is that his address had been changed at the time when the summons in the Original Petition had been sent to him, and that the signature on the Acknowledgment Card is not his. It is pertinent that, in spite of making such assertions, the appellant did not choose to take the box or to lead evidence, but relied upon certain bald statements.

7. We find force in the submissions of Sri.Unnir