IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Mat.Appeal.No. 146 of 2010 ---------------------------- OP.911/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER/: APPELLANT ------------------------ SHARAFUDHEEN, AGED 28 YEARS, S/O. ABDULLA, THECHIYODAM HOUSE, THARISU P.O., MAMBATTA, KARUVARAKUNDU, MALAPPURAM DISTRICT. BY ADV. SRI.K.SHIBILI NAHA RESPONDENTS: --------------- 1. BUSHARA, AGED 24 YEARS, D/O. MUHAMMED, ERANIYIL HOUSE, KERALA ESTATE P.O., KARUVARAKUNDU, MALAPPURAM DISTRICT. 2. DIVYA SHARAF, AGED 3 1/2(MINOR), D/O. SHARAFUDHEEN. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== C.M.APPLIATION N O. 439 OF 2010 & MAT APPEAL NO. 146 OF 2010 ============================ DATED THIS THE 17TH DAY OF MAY 2010 ORDER/JUDGMENT Basant,J. The appellant challenges an order passed by the Family court directing payment of maintenance to his wife and child. The impugned decree is an ex parte decree. The appellant has filed this appeal with an application to condone the delay of 293 days. Virtually the only challenge is that he has been wrongly set ex parte by the court below. 2. Has the appellant moved the court below to get the ex parte order set aside? Why has he chosen to rush to this Court with this appeal without and before filing an application to get the ex parte order set aside? In the light of these queries, the learned counsel for the appellant prays that the appellant may be permitted to move the court below to get the ex parte order set aside and urge his contentions on merits in such petition. MAT APPEAL NO. 146/2010 2 3. We are satisfied that the said request can be allowed and this appeal can be dismissed as withdrawn. 4. This appeal and the application for condonation of delay are hence dismissed as withdrawn. We make it clear that the dismissal of this appeal and the application for condonation of delay shall not in any way fetter the rights of the appellant to move the court below and claim to set aside the ex parte order on merits subject of course to the law relating to limitation. The dismissal of this appeal and the application for condonation of delay as withdrawn will not in any way fetter the rights of the appellant to claim relief in accordance with law in such application to set aside the ex parte order. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. MAT APPEAL NO. 146/2010 3