IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 Mat.Appeal.No. 945 of 2010(D) ---------------------------- OP.489/2008 of FAMILY COURT, PALAKKAD .................... PETITIONER : APPELLANT/RESPONDENT ----------------------------------- SIBI GEORGE, AGED 42 YEARS, S/O.GEORGE, KONDAMALAYIL, KANJIRAPUZHA AMSOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.C.K.RAMAKRISHNAN RESPONDENT : PETITIONER ------------------------- JINI DAVID, AGED 25 YEARS, D/O.DAVID, NAMBADAN VEEDU, KOPPAM AMSOM DESAM, PALAKKAD DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2010 ALONG WITH MAT.APPEAL NO.946 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. ----------------------------------------------------- C.M.Appl.No.3055 of 2010 & Mat.Appeal No.945 of 2010 and C.M.Appl.No.3059 of 2010 & Mat.Appeal No.946 of 2010 ---------------------------------------------------- Dated this the 24th day of November 2010 ORDER/JUDGMENT Basant, J. C.M.Applications are filed to condone the delay exceeding 250 days in filing two Matrimonial appeals. The appeals in turn are directed against exparte orders passed by the Family Court. The learned counsel for the petitioner/appellant was requested to explain the nature of the challenge which the petitioner/appellant wants to mount against the impugned orders. The learned counsel for the petitioner/appellant submits that the petitioner has been wrongly set exparte and that is only the ground of challenge. There is no attempt before us to challenge the impugned decisions on merits. 2. Has this ground of challenge been raised in a proper application under Order IX Rule 13 C.P.C? It is well settled that an exparte order cannot be challenged by an aggrieved by filing an appeal on the ground that he has been wrongly set exparte. He has to file an application to set aside the exparte order under Order IX Rule 13 C.P.C. The learned counsel for the petitioner/appellant submits that his application to get the C.M.Appl.No.3055 of 2010 & Mat.Appeal 2 No.945 of 2010 and C.M.Appl.No.3059 of 2010 & Mat.Appeal No.946 of 2010 exparte order set aside was not entertained by the court below. How did this non entertainment take place? Was the application filed, returned, rejected or dismissed? None of these have admittedly been done. The court is not entertaining the application, it is submitted. We are unable to accept this. It is well settled that no Court can resort to the course of receiving an application filed by a party [see the decision in Gopalakrishna Pillai v. D.S.P [2008(3) KLT 80]. The petitioner must file an application to get the exparte order set aside and such application, if any filed, will have to be considered by the Family Court and appropriate orders passed. 3. With the above observations, these petitions for condonation of delay and the appeals are dismissed as agreed. We may hasten to observe that the dismissal of these petitions and the rejection of these appeals will not in any way fetter the rights of the petitioner to move the Family Court to get the exparte order set aside in accordance with law under Order IX Rule 13 C.P.C. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/