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 7TH JUNE 2010 / 17TH JYAISTHA 1932 Mat.Appeal.No. 393 of 2010() ---------------------------- OP.358/2008 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- THOMAS JOSEPH,AGED 40 YEARS, S/O.JOSEPH,KOTTAIKAL PUTHUPPARAMBU HOUSE, MADAPPALLY PO,CHANGANACHERRY NOW WORKING IN ALGANIUM INDUSTRIES,G.M.MAIN SERVICE SECTOR-4, KUWAIT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): PETITIONER ------------------------- BIJIMOL PHILIP,AGED 36 YEARS, D/O.PHILIP,PUTHUVEETTIL HOUSE,MADAPPALLY PO, CHANGANACHERRY, KOTTAYAM. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * C.M.Application No.1116 of 2010 & Mat.Appeal No.393 of 2010 ---------------------------------------- Dated this the 7th day of June 2010 O R D E R & J U D G M E N T Basant,J The husband is the appellant. He has filed this appeal along with an application to condone the delay of 391 days. The impugned order is a common order. Under another part of the common order, the marital tie has been dissolved by a decree of divorce. There is a direction for payment of amounts by the husband to the wife. 2. Earlier, the husband was set ex parte. Before a final order was passed, he had filed an application and was permitted to take part in the proceedings. Even thereafter, as he did not participate, he was set ex parte. Accordingly, the impugned common order was passed. The appellant/husband now accepts the decree for divorce. But, according to him, he has been wrongly set ex parte in the proceedings for recovery of money. He hence wants the delay to be condoned and the appeal to be admitted. 3. The only contention raised on merits is that Exts.A2 to C.M.Appl.No.1116/10 & M.A No.393/10 : 2 : A4 are not genuine documents and they are fabricated ones. There is the oral evidence of Pws.1 and 2 in support of the transaction asserted by the claimant/wife. 4. Prima facie, we find no merit whatsoever in the challenge against the order on merits. The only bone of contention is whether the appellant has been wrongly set ex parte in this proceedings. 5. Has the appellant filed an application to get the ex parte order set aside raising the plea that he has been wrongly set ex parte? No application has, admittedly, been filed. We find absolutely no merit in this appeal. 6. The learned counsel submits that if the appeal is admitted, there is a chance of the matter being settled. We are not persuaded to agree that the appeal deserves to be admitted only for the purpose of exploring the possibility of a settlement. If there be a possibility of a settlement, that can be achieved by the petitioner by filing an application to set aside the ex parte order. If the matter is settled, that fact can be reported to the Family Court in such proceedings. In any view of the matter, we find no merit in the prayer for condonation of delay and in this C.M.Appl.No.1116/10 & M.A No.393/10 : 3 : appeal. 7. However, the learned counsel for the appellant finally submits that he may be permitted to move the Family Court to get the ex parte order set aside. We accept the said request. The learned counsel for the appellant submits that this appeal and the application for condonation of delay may be permitted to be withdrawn without any fetter on the right of the appellant to move the Family Court to get the ex parte order set aside. We accept that plea. 8. In the result, this application for condonation of delay and the Mat.Appeal are both dismissed as withdrawn with the observation that such dismissal will not in any way fetter the rights of the appellant to move the court below, subject to the law of limitation to get the ex parte order set aside. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge C.M.Appl.No.1116/10 & M.A No.393/10 : 4 : C.M.Appl.No.1116/10 & M.A No.393/10 : 5 : R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009