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 16TH JULY 2009 / 25TH ASHADHA 1931 Mat.Appeal.No. 162 of 2009() ---------------------------- OP.45/2008 of FAMILY COURT, MALAPPURAM. .................... APPELLANT/RESPONDENT ---------------------------- ERIYADAN MUSTHAFA, S/O.MUHAMMEDKUTTY, ERIYADAN HOUSE, KANNATTIPADI POST, VENGARA VIA., MALAPPURAM DISTRICT, REP. BY POWER OF ATTORNEY HOLDER, M.MOIDEENKUTTY, S/O.KUNHAHAMMED, MANAMMAL HOUSE, MUNNIYOOR P.O., THIROORANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT: PETITIONER ------------------------- KARIMBIL MIKACHA UMMUHABEEBA, W/O.ERIYADAN MOHAMMED MUSTHAFA, KARIMBIL MIKACHA HOUSE, TIROORANGADI AMSOM, KAKKAD DESOM, THIROORANGADI TALUK, MALAPPURAM DISTRICT. ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- C.M.Application No.518 OF 2009 & Mat.Appeal No.162 OF 2009 ----------------------------------------------------- DATED THIS THE 16th DAY OF JULY, 2009 O R D E R/J U D G M E N T Basant, J. This petition is to condone the delay of 139 days in filing a Mat.Appeal. The Mat.Appeal in turn challenges an ex parte decree directing payment of an amount of Rs.5 lakhs by the appellant to the respondent, his wife. The appeal has been filed with 139 days delay. It is prayed that a lenient view may be taken and the delay may be condoned. 2. No arguments on merits is raised, nor is it possible, as the appellant had not appeared before the court below. The crux of the contention of the learned counsel for the appellant is that the appellant was not duly served. Did he file an application to set aside the ex parte order? Admittedly, that has not been done. But, the appellant has chosen to challenge the order in appeal. We find merit in the contention of the learned counsel for the respondent that without any attempt to get the ex parte Mat.A.No.162/09 -2- order set aside, the attempt to challenge the ex parte order in appeal on the ground that he is wrongly set ex parte is not justified at all. 3. However, after discussions at the Bar, the learned counsel for the respondent submits that the respondent has no objection against grant of an opportunity to the appellant to contest the proceedings. But, the same may be granted only subject to appropriate terms and conditions. The appellant is engaged in a transparent and naked attempt to delay and protract the proceedings. All necessary steps had been taken to get the service effected on the appellant in accordance with law, submits the learned counsel for the respondent. 4. We are satisfied that in the light of the submission of the learned counsel for the respondent, this application as well as the Mat.Appeal can straightaway be allowed, subject to appropriate conditions. In the nature of the submissions made by the learned counsel for the respondent, it is unnecessary to delve deeper into the question of maintainability of the appeal. Mat.A.No.162/09 -3- 5. In the result: (a) the petition for condonation of delay shall stand allowed. (b) the Mat.Appeal shall stand admitted and allowed. (c) the Family Court shall dispose of O.P.No.45/08 afresh on the following terms and conditions. (1) The appellant shall within 60 days from this date deposit 1/5th of the amount due under the impugned ex parte order before the Family Court. (2) The appellant shall offer security for the entire balance amount due under the decree to the satisfaction of the Family Court within a period of 60 days. It is made clear that the property under attachment can also be offered as security if the Family Court is otherwise satisfied about the acceptability of such security. (3) The execution proceedings shall not be continued for a period of 60 days from this date. 6. The parties shall appear before the Family Court on Mat.A.No.162/09 -4- 17.9.2009. On that date, the Family Court shall verify whether the conditions have been satisfied. If the conditions have been satisfied, the Family Court shall proceed to dispose of O.P.No.45/08 afresh on merits as expeditiously as possible – at any rate, within a further period of six months. If both conditions have not been satisfied, the Family Court shall make a note of that fact and thereupon the impugned ex parte order shall continue to remain in force. It is further directed that the amount if deposited shall be retained in a fixed deposit such that the principal amount along with interest accrued can be released to the successful party on final disposal of O.P.No.45/08. 7. Handover a copy of this judgment to the learned counsel for the appellant. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn