IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Mat.Appeal.No. 384 of 2010() ---------------------------- OP.866/2007 of FAMILY COURT, MALAPPURAM .................... APPELLANT/PETITIONER/RESPONDENT: K.N.JAIN, S/O.K.K.NARAYANAN, KALATHIL VEEDU, EZHUPUNNA, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.BABU S. NAIR SMT.M.T.SHEEBA RESPONDENTS/RESPONDENTS/PETITIONERS: 1. ALLI P.B, D/O.BALAN, THAREPARAMBU HOUSE, PALLIKUTHU, CHUNGATHARA, NILAMBUR, MALAPPURAM DISTRICT. 2. ANANTHAKRISHNAN, S/O.K.N.JAIN REP. BY THE FIRST RESPONDENT MOTHER GUARDIAN. BY ADV. SRI.RAJAN KUDUMBATHIL THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: APPENDIX IN MA 384/2010 ANNEXURE-A TRUE COPY OF THE PETITION FILED BY RESPONDENTS HEREIN BEFORE THE FAMILY COURT AS OP 866/2007 ANNEXURE-B TRUE COPY OF THE ORDER IN OP 866/2007 DT. 12.5.08 OF THE FAMILY COURT, MALAPPURAM ANNEXURE-C TRUE COPY OF THE COMMON ORDERS IN IA 2240/08 AND 2241/08 IN OP 866/2007 OF THE FAMILY COURT, MALAPPURAM DT. 8.1.2009 ANNEXURE-D TRUE COPY OF THE SALARY CERTIFICATE OF THE FIRST RESPONDENT RECEIVED BY THE APPELLANT THROUGH THE RIGHT INFORMATION ACT /TRUE COPY/ Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. ------------------------------------------------------------- Mat. Appeal No.384 of 2010 ------------------------------------------------------------- Dated this the 2nd day of December, 2011 JUDGMENT Thottathil B.Radhakrishnan J. This appeal arises from a proceeding filed by the husband to set aside the ex parte decree on an application filed by the wife for certain amounts allegedly due to her. The main matter was decreed ex parte. The husband applied to have the ex parte decree set aside. The court below imposed remittance of 10% of the decree amount as a condition for setting aside the ex parte order. He did not comply with that order in time. Hence, the application to set aside the ex parte decree was dismissed. 2. In this appeal, there was an interim order at the stage of admission, in terms of which the appellant was obliged to pay 50% of the decree debt. Though beyond the MA 384/2010 2 time prescribed to do so, he has now paid the amount. Therefore, it would be just and reasonable to have a contested disposal of the main matter before the court below. 3. Under such circumstances and noticing the fact that deposit was not made within the time limit prescribed, we order the appeal in the following terms: 1. Appellant will deposit before the court below a further amount of ` 5,000/- as cost. 2. The amount in deposit and the amount of ` 5,000/- can be withdrawn by the wife on furnishing an affidavit to the effect that withdrawal of the amount by her as part of the decree amount, would be provisional and subject to the final decree that may be passed after trial. MA 384/2010 3 3. If the deposit as aforesaid is made, the impugned order will stand vacated and the ex parte order in O.P.No.866/2007 will stand set aside. The Family Court will then proceed with trial of the main matter on merits. Appeal is ordered accordingly. (Thottathil B.Radhakrishnan, Judge) (C.T.Ravikumar, Judge) tkv