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 17TH JUNE 2010 / 27TH JYAISTHA 1932 Mat.Appeal.No. 475 of 2007() ---------------------------- OP.112/2005 of FAMILY COURT, MANJERI .................... APPELLANT/RESPONDENT ---------------------------- MUSTHAFA, S/O.MUHAMMED BAVA, AGED 39 YEARS, CHERIYA MAKKANAKATH HOUSE, KALAD, KUNDUNGAL, MOOLAKKAL (VIA) K.PURAM, THANALOOR, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENT/PETITIONER ------------------------- 1. CHERIYA BEEVI, AGED 36 YEARS, D/O.KUNHIMUHAMMED, KALATHINGAL, NEAR NORTH MOSQUE, ELARAM KADAPPURAM, P.O.TANUR, MALAPPURAM DISTRICT. 2. MUHAMMED THABSEER, AGED 13 YEARS, S/O.CHERIYA BEEVI, MINOR, REPRESENTED BY MOTHER AND GUARDIAN THE IST RESPONDENT CHERIYA BEEVI. ADV. SRI.K.P.SUDHEER FOR R1-2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * C.M.Application No.1709 of 2007 & Mat.Appeal No.475 of 2007 ---------------------------------------- Dated this the 17th day of June 2010 O R D E R & J U D G M E N T Basant,J There is no representation for the appellant. Condition imposed vide order dated 23/11/2009 which must have been complied by 23/12/2009 is not seen complied. Certificate is not produced. Sufficient time has already been granted. We take it that the appellant has not complied with the condition and is not interested in prosecuting this proceedings. 2. In the result, the application for condonation of delay is dismissed for non-compliance with the conditions. 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 M.A.No.475/09 2 M.A.No.475/09 3 C.M.A.No.1709 of 2007 This application is to condone the delay of 732 days in filing a Mat.Appeal. The appeal in turn is directed against an order granting past maintenance at the rate of Rs.800/- per mensum to the child of the appellant. A total amount of Rs.28,800/- (Rs.800/- x 36 months) is awarded. The learned counsel for the appellant submits that the delay in filing the appeal occurred on account of reasons beyond the control of the appellant. The respondent has entered appearance. The application is opposed. It is submitted that the amounts have not been paid so far and the belated attempt is only to protract and prolong the proceedings and to avoid and delay the payment further. 2. We have heard both sides. We are satisfied that a lenient view can be taken and the delay can be condoned subject, of course, to the need to zealously ensure that the right of the appeal is not being invoked belatedly to play for time. 2. In the result, a) This petition is allowed subject to conditions. M.A.No.475/09 4 b) The delay shall stand condoned and the petition shall stand allowed on condition that the appellant/petitioner deposits the entire amount due under the impugned decree till the date of deposit before the Family Court within a period of thirty days from this date. 3. If such deposit is made, the Family Court shall issue a certificate to the appellant who shall produce the same before this court. The amount, if deposited, shall not be released to the respondent till the next date of posting. 4. Call on 04/01/2010. 2. In the result, a) This petition is allowed subject to conditions. b) The delay shall stand condoned and the petition shall M.A.No.475/09 5 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. The respondent has already served and entered appearance through counsel. Furnish copies of the memorandum of M.A.No.475/09 6 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.