Harilal, J.
The petitioner is the Judgment Debtor in E.P.No.84/13 in O.P.No.462/12 on the file of the Family court, Tirur. He is the former husband of the respondent. After a long chequered career, the entire dispute involved in several cases were settled by Ext.P1. Thereafter, the respondent filed a suit for damages before the Family court, Tirur, as O.P.No.462/12 (Ext.P2). The said suit was decreed ex parte. According to the petitioner, no notice was served on the petitioner, as he was working at Moscow. The respondent, purposefully sent notice to the Malappuram address, even though the address at Moscow was mentioned in the suit. The suit was decreed ex parte on 19.4.2013. On knowing the information of ex parte decree passed against him, the petitioner filed Ext.P3 petition to set aside the decree under Order IX Rule 13 of CPC along with the petition to condone the delay in filing the petition to set aside the ex parte order. Meanwhile, the respondent filed Ext.P4 E.P.No.84/13 before the Family court, Tirur, and the Family court has issued notice of proclamation. Now, Ext.P3 petition stands posted to 6.12.2014 and by that time, Exts.P4 and P5 will be proceeded with. According to the petitioner, the entire rights and liabilities of both the parties were settled by Ext.P1 and now the present suit is filed claiming tortious liability for mental agony, loss of company and travel expenses and compensation for physical strain, disruption of eduction of minors etc. The suit is filed on experimental basis to harass the petitioner.
2. The learned counsel for the petitioner advanced arguments in support of the grounds raised in the memorandum of original petition. Considering the nature of averments and the relief sought for, we feel that notice to the respondent can be dispensed with as the same would not cause any prejudice to the rights of the respondent.
3. The sum and substance of the grievance projected in the writ petition is that, the respondent has been executing an ex parte decree, after denying the right to be heard before passing the decree sought to be executed. If the court below is allowed to proceed with the ex parte decree, Ext.P3 proceedings would become infructuous and thereby the petitioner will be put to irreparable injury and great loss.
4. We find force in the arguments advanced by the learned counsel for the petitioner and further find that the petitioner can be given an opportunity to contest the original suit on merit and thereafter the court below can be allowed to proceed with the execution proceedings. In the above view, this original petition is disposed of with the following terms :
1) The Family court, Tirur, is directed to consider and dispose Ext.P3 petition within a period of 3 months from today.
2) Exts.P4 and P5 proceedings shall be kept in abeyance till the disposal of Ext.P3 petition.
This original petition is disposed of accordingly.
Sd/-
V.K.MOHANAN, Judge.
ami/ //True copy// P.A.to Judge Sd/-
K.HARILAL, Judge.