IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 Mat.Appeal.No. 681 of 2010(F) ---------------------------- OP.497/2009 of FAMILY COURT, KOTTAYAM .................... APPELLANT : RESPONDENT ------------------------ BINDHU PHILIPS, AGED 39 YEARS, NO.11, BRIARDALE COURT, PLAINSBORO, NEW JERSEY 089536, USA REP. BY HER POWER OF ATTORNEY HOLDER P.T.PHILIPOSE, AGED 72 YEARS, S/O.LATE P.O.THOMAS, NADUKKEPARAMBIL HOUSE, PAMPADY VILLAGE, KTM DIST, NOW R/AT HOUSE NO.15, LAKE VIEW DEFENCE COLONY BY ADV. SRI.JAMES KURIAN SRI.SANTHOSH MODAYIL RESPONDENT : PETITIONER --------------- SUNIL JACOB, AGED 41 YEARS, S/O.JACOB KURIAN, ELAVUMKAL HOUSE, VADAVATHOOR, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK. VADAVATHOOR P.O. 686 010. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. ********************** C.M.Appl.No.2033 of 2010 & Mat.Appeal No.681 of 2010 ********************* Dated this the 8th day of September, 2010 ORDER/JUDGMENT BASANT, J. C.M.Appl.No.2033 of 2010 is to condone the delay of 41 days in filing a matrimonial appeal. The matrimonial appeal in turn is directed against an order granting a decree for divorce. That is an exparte order. 2. The learned counsel for the petitioner/appellant was requested to explain how the challenge in this appeal can be justified on merits. The learned counsel submits that he wants to assail the impugned order in so far as it relates to the course adopted by the court below of setting her exparte. But has the appellant moved the court below under Order IX Rule 13 C.P.C to get the exparte order set aside ? Admittedly she has not done the same. After discussions at the Bar, the learned counsel for the petitioner/appellant submits hat the petitioner/appellant may be permitted to resort to the remedy/relief under Order IX Rule 13 C.P.C. The petition for condonation of delay and the appeal may be dismissed without any fetter on the right of the Mat.Appeal No.681 of 2010 2 petitioner/appellant to move the Family Court under Order IX Rule 13 C.P.C to get the impugned order set aside, prays the learned counsel for the petitioner/appellant. 3. We are satisfied that the request of the counsel can be allowed. The petition for condonation of delay and the Matrimonial Appeal are, in these circumstances, dismissed as withdrawn, making it clear that the dismissal will not in any way affect the right of the petitioner/appellant to move the Family Court under Order IX Rule 13 C.P.C to get the exparte order set aside. It is submitted that there would be a delay in filing the application to set aside the exparte order. We need only mention that the reasons for the delay can be urged before the Family Court. We have no reason to assume that the Family Court shall not consider the prayer for condonation of delay on merits and with compassion. No further directions are hence necessary. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS , JUDGE) rtr/