IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Mat.Appeal.No. 796 of 2010() ---------------------------- OP.128/2008 of FAMILY COURT, ALAPPUZHA .................... APPELLANT/COUNTER PETITIONER ------------------------------------------- JABBAR, AGED 47 YEARS, S/O.SHAMSUDEEN, KINATTINMOODU, CIVIL STATION WARD, NEAR POLICE QUARTERS, ALAPPUZHA. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENT(S): PETITIONER ------------------------- SAJITHA, AGED 34 YEARS, D/O.HAMEED, KOCHAKKATTU VELI, MANNANCHERRY P.O., KALAVOOR, ALAPPUZHA DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.Appln.No. 2424 of 2010 & Mat. A.No. 796 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2010 JUDGMENT Basant, J. The above petition is to condone the delay of 649 days in filing the Mat. Appeal. The appeal, in turn, is directed against an ex parte order directing the appellant to return 44 grams of gold ornaments or its value to the respondent, his wife. 2. When this matter came up for admission, learned counsel for the appellant/petitioner was requested to explain how an appeal against the impugned ex parte order is maintainable on merits when no application has been filed under Order 9 Rule 13 C.P.C. to set aside the ex parte order. Counsel was requested to specifically explain whether the challenge is maintainable on C.M.Appln.No. 2424 of 2010 & MA 796/10 2 grounds other than the ground that the appellant was wrongly set ex parte, in which event the proper remedy is to file an application under Order 9 Rule 13. Counsel took time to take instructions and to work up the legal position 3. Today when the matter came up, learned counsel for the appellant submits that the appellant shall be taking steps to file a proper petition under Order 9 Rule 13. Without prejudice to the right of the appellant to prosecute the said petition under Order 9 Rule 13, this petition for condonation of delay and the appeal may be dismissed as withdrawn, submits the counsel for the appellant/petitioner. 4. We are satisfied that the request can be accepted. The application for condonation of delay and the appeal are, in these circumstances, dismissed as withdrawn. We may hasten to observe that the dismissal as withdrawn of this petition and the appeal will not in any way fetter the rights of the appellant/petitioner to file C.M.Appln.No. 2424 of 2010 & MA 796/10 3 appropriate application under Order 9 Rule 13, which application, the Family Court shall be obliged to consider in accordance with law. (R.BASANT) Judge (M.L. JOSEPH FRANCIS) Judge tm