T.V. Anilkumar JUDGMENT
T.V. Anilkumar, J.
1. A common order passed by the Family Court, Nedumangadu in I.A. Nos. 1337 and 1338 of 2018 in O.P. No. 741/2017 is challenged by the appellant who is the sole respondent in the said I.As. as well as in the Original Petition.
2. The respondents in this appeal are the wife and two minor children who filed O.P. No. 741/2017 for recovery of gold ornaments and maintenance from the appellant herein. An ex parte decree was passed against the appellant on 18.11.2017, when he failed to contest the O.P. Later, he sought to set aside the decree, after seeking to condone the delay of 233 days. That was allowed by the court below by the impugned common order dated 22.11.2018. By the impugned order, he was directed to make payment of ` 50,000/- being part of the maintenance amount decreed in favour of the respondents as a condition for condoning the intervening delay and for setting aside the ex parte decree. His core grievance in this appeal is limited to the order of the Family Court directing payment of ` 50,000/-, as a condition for setting aside the ex parte decree.
3. The challenge involved in this appeal is that the Family Court was not justified in having ordered payment of part of the decree amount, when his liability is yet to be finally determined in the O.P. According to learned counsel for the appellant, Order IX Rule 13 of the Code of Civil Procedure does not extent to the court any power to order payment of any portion of the decree amount, other than to impose reasonable cost on the applicant as a condition for setting aside ex parte decree.
4. We heard counsel appearing on both sides.
5. The only question for consideration, is whether the condition imposed by the court below was harsh, unreasonable or onerous causing prejudice to the appellant. Law does not seem to prohibit the court from imposing a condition ordering payment of part of the decree amount while exercising power under Order IX Rule 13 of the CPC. But the court has to be cautious enough to notice that the condition imposed on the party does not work out to be harsh and onerous to him. So far as this case is concerned, there is no dispute on marital relationship. The sole ground on which liability for maintenance is disowned is that the appellant has been looking after the wife and children all through out even when the litigation against him was pending. When the spousal relationship stands admitted, it naturally follows that the husband-cum-father has undeniable liability to maintain the wife and children under law. It seems that the court below applying this yardstick was inspired to take the view that no prejudice would be caused to the applicant even if he is directed to deposit a sum of ` 50,000/- towards maintenance of the respondents as a condition for condoning the delay and for setting aside the ex parte decree.
6. We do not find any reason to interfere with the finding entered by the court below. The amount fixed by the impugned orders for payment to the respondent appears to be quite reasonable also. It is very difficult to assume that the court below has been harsh nor ........