V.K.Mohanan, J.
Aggrieved by the common order dated 14.05.2014 in I.A.Nos.159 and 160 of 2013 in O.P.No.1240 of 2011 of the Family Court, Malappuram, the appellant, who is the respondent in the said original petition preferred the above appeal. O.P.No.1240 of 2011 was filed by the respondents 1 and 2, who are the minor children of the appellant represented by their mother (1st respondent herein), claiming past maintenance. As the appellant failed to appear in the court below, he was set ex parte on 17.02.2012. Consequently an order was passed directing the appellant to pay a total sum of `1,75,000/- being the arrears of past maintenance. Subsequently the appellant, when he came to know about the ex parte order and decree, approached the court below by filing I.A.Nos.159 of 2013 and 160 of 2013 respectively, with a prayer to condone the delay of 242 days occurred in filing I.A.No.160 of 2013 to set aside the ex parte order. Court below by the impugned order allowed those petitions on condition that the appellant shall deposit half of the decree amount and posted the matter for payment on 03.06.2014. At this point of time, the petitioner has approached this Court by filing the above appeal.
2. We heard the learned counsel appearing for the appellant.
Since the order impugned is though not per se illegal but, improper and therefore, we are of the view that without notice to the respondents the appeal itself can be disposed of by safeguarding the interest of the respondents, who are the claimants.
3. The fact beyond dispute is that the court below is inclined to condone the delay and also to set aside the ex parte decree. But it is not proper to impose a condition which is disproportionate to the alleged negligence and delay. From the facts available on record, it can be seen that the delay occurred in filing the petition to set aside the ex parte decree is only 242 days. As the ex parte decree stand set aside, it is improper to direct to deposit half of such decree amount as a condition precedent. If that be so, by setting aside the order directing the appellant to deposit half of the decree amount appropriate conditions can be imposed so as to enable the appellant to enjoy the order passed by the court below, enabling him to participate in the proceedings. But at the same time the interest of the respondents-claimants has to be considered.
In the result, this appeal is disposed of setting aside the condition to deposit half of the decree amount. Instead of that, appellant is directed to pay a sum of `2,500/- (Rupees Two thousand and five hundred only) each to the children, who are respondents 2 and 3 in this proceedings being the condition to condone the delay as well as for setting aside the ex parte decree. Appellant is directed to pay `5,000/- (Rupees Five thousand only) within two weeks from today to the respondents directly or by depositing in the court, which ever subject to the satisfaction of the court below. On depositing the said amount the court below is directed to release the same in favour of the claimants in that court and further directed to dispose of the original petition as expeditiously as possible.
V.K.MOHANAN, JUDGE.
A. HARIPRASAD, JUDGE.
cks