IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 Mat.Appeal.No. 302 of 2010 ---------------------------- AGAINST THE ORDER DATED 14/08/2009 IN IA.2367/2008 IN OP.368/2008 of FAMILY COURT,THIRUVANANTHAPURAM .................... APPELLANT/COUNTER-PETITIONER ------------------------------------------- J.VIJAYADAS, AGED 44, S/O.JOHNSON NADAR, KAVUVILA VEEDU, DHANUVACHAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP RESPONDENT/PETITIONER ------------------------- P.LILLI PUSHPAM, AGED 40, D/O.PRAKASH, THENGUVILA VEEDU, ERICHALLOOR, PLAMOOTTUKKADA.P.O, THIRUVANANTHAPURAM. ADV. SRI.SABU S.KALLARAMOOLA FOR R1 SRI.P.PRAVEEN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * C.M.Application.No.928 of 2010 in Mat.A.No.302 of 2010 ---------------------------------------- Dated this the 15th day of July 2010 O R D E R/J U D G M E N T Basant,J This application is to condone the delay of 210 days in filing a Mat.Appeal. The Mat.Appeal, in turn, is directed against an order directing payment of interim maintenance at the rate of Rs.2,000/- per mensum. 2. That there is a valid marriage is admitted. That the spouses are residing separately and that the marriage is in doldrums are all accepted. Admittedly, the appellant/husband is employed abroad. No precise material to indicate his income was made available before the court below. There is nothing to show that the wife has any employment or income. It is, in this background, that the claim for interim maintenance was raised and granted. 3. The question is whether the delay of 210 days deserves to be condoned. We are unable to find any valid reasons. That the case has been prosecuted through a power of attorney holder is, by itself, not a reason to condone the long C.M.Application.No.928 of 2010 in Mat.A.No.302 of 2010 2 delay of 210 days. In our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in miscarriage of justice, the learned counsel for the appellant was requested to explain the nature of the challenge. It is in this context that we have referred to the indisputable facts earlier. 4. We are satisfied that, on merits and in substance, no worthwhile reasons have been advanced. Rejection of the prayer for condonation of delay, we are satisfied, shall not result in any miscarriage of justice. 5. In the result, the petition for condonation of delay is dismissed. Consequently, the Mat.Appeal shall stand rejected as barred by limitation. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge C.M.Application.No.928 of 2010 in Mat.A.No.302 of 2010 3 2. In the result, a) This petition is allowed subject to conditions. b) The delay shall stand condoned and the petition shall stand allowed on condition that the appellant (i) deposits 10% of the entire amount due under the decree till the date of deposit before the Family Court within a period of sixty days from this date. (ii) offers security for the entire balance amount due under the decree on the date of deposit to the satisfaction of the Family Court within a period of sixty days. If the amount is deposited, the court below can straight away release the same to the respondent/claimant without waiting for further orders from this court. (iii) If the said conditions are satisfied, the Family Court C.M.Application.No.928 of 2010 in Mat.A.No.302 of 2010 4 shall issue a certificate to the appellant who shall produce the same before this court. 3. Call again after sixty days or earlier, if the certificate is produced. The respondent has already served and entered appearance through counsel. Furnish copies of the memorandum of appeal to the learned counsel for the respondent. Take all necessary steps within a period of seven days. If steps are taken, call after service is complete. If steps are not taken, call after seven days. By way of abundant caution, we direct that notice in this appeal be issued to the respondent afresh. Such conditions will have to be imposed which shall ensure that the right of the appeal is not invoked belatedly for the mere purpose of prolonging and protracting the proceedings. We make it clear that this order will not in any way fetter C.M.Application.No.928 of 2010 in Mat.A.No.302 of 2010 5 the power of the court below to proceed in execution against the husband during these sixty days.