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. 60 of 2009 --------------------------- OP.188/2007 of FAMILY COURT,KOZHIKODE .................... APPELLANT/RESPONDENT: --------------- P.K.ANAND, AGED 46 YRS,S/O.KUNHIPPILLA KESAV,PUTHYAVEETTIL HOUSE,P.O.K.S.PURAM, KARUNAGAPPALLY. BY ADV. SRI.KRISHNADAS P. NAIR SRI.HARIDAS P.NAIR SMT.K.L.SREEKALA RESPONDENT: --------------- K.LAKSHMI, AGED 42 YRS,D/O.RAMAN, KUNNATH HOUSE, OLAVANNA, KOZHIKODE. ADV. SRI.MANJERI SUNDERRAJ SMT.K.K.PREETHA 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.148 of 2009 & Mat.A.No.60 of 2009 ---------------------------------------- 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 29 days in filing a Mat.Appeal. The Mat.Appeal in turn is directed against an order granting divorce under Section 13(1)(ia) of the Hindu Marriage Act. That was an ex parte order. 2. The learned counsel for the appellant was requested to explain whether any application had been filed to get the ex parte order set aside. In the alternative, the counsel was requested to explain how the challenge on merits against the ex parte order can be sustained. 3. After discussions at the bar, the learned counsel for the appellant/petitioner only submits that the appellant's right to file a petition to set aside the ex parte order may be preserved and this petition and the appeal may now be dismissed. 4. We accept the request of the learned counsel for the petitioner. The petition for condonation of delay and the C.M.Application.No.148 of 2009 & Mat.A.No.60 of 2009 2 Mat.Appeal are dismissed as not pressed without any fetter on the right of the petitioner to file an appropriate application before the Family Court to set aside the ex parte order for divorce passed against him. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge C.M.Application.No.148 of 2009 & Mat.A.No.60 of 2009 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 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. C.M.Application.No.148 of 2009 & Mat.A.No.60 of 2009 4 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 the power of the court below to proceed in execution against the husband during these sixty days.