IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 Mat.Appeal.No. 63 of 2006() --------------------------- OP.289/2005 of FAMILY COURT,KOZHIKODE .................... APPELLANT/RESPONDENT ----------------------------------- K.M.SALIM, S/O.MOOSA, KOLLITHODIKA, PANNIKKOT.P.O, ERANHIMAVU, MUKKOM, KOZHIKODE TALUK. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT: PETITIONER ------------------------- SAMEEMA, D/O.MUHAMMEDKUTTY, AGED 31 YEARS, NJATTIKKAL HOUSE, PANNIYANKARA AMSOM AND DESOM, KOZHIKODE. ADV. SRI.T.G.RAJENDRAN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. ********************** C.M.Appl.No.568 of 2006 & Mat.Appeal No.63 of 2006 ********************* Dated this the 13th day of September, 2010 ORDER/JUDGMENT BASANT, J. This petition is to condone the delay of 48 days in filing a matrimonial appeal. The appeal in turn is directed against an exparte order directing to pay amounts to his wife. That was an exparte order. No application to set aside the exparte order has admittedly been filed. Called upon to explain to the Court how the challenge against the impugned order can be suspended in the absence of a prayer to set aside the exparte order under Order IX Rule 13 C.P.C before the Family Court, the learned counsel for the petitioner/appellant after taking time submits today that the application for condonation of delay and the appeal may be dismissed as withdrawn without prejudice to the right of the petitioner/appellant to move the court below for setting aside the impugned exparte order. 2. That request of the learned counsel for the petitioner/appellant is accepted. The petition for condonation of delay and the Matrimonial Appellant are, in these circumstances, C.M.Appl.No.568 of 2006 & Mat.Appeal No.63 of 2006 2 dismissed as withdrawn making it clear that the dismissal will not in any way affect the right of the petitioner/appellant to move the court below for getting the exparte order set aside in accordance with law. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS , JUDGE) rtr/