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 11TH JUNE 2009 / 21ST JYAISHTA 1931 Mat.Appeal.No. 395 of 2009() ---------------------------- GOP.196/2004 of FAMILY COURT,THRISSUR .................... APPELLANT/RESPONDENT ------------------------- BABU C.D., AGED 31 YEARS, S/O.DEVASSY, CHIRIYAMKANDATH HOUSE, KAKKASSERY P.O., CHAVAKKAD TALUK. BY ADV. SRI.RAJIT RESPONDENT: PETITIONER -------------------------------- MARY T.V., AGED 29 YEARS, D/O.VARGHESE, THACHAMPARAMBIL HOUSE, VARADIYAM, AVANUR P.O., THRISSUR DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== C.M.APPLN.1260 OF 2009 & MAT.APPEAL NO. 395 OF 2009 ============================ DATED THIS THE 11TH DAY OF JUNE 2009 JUDGMENT Basant,J. The petitioner/appellant has suffered an ex parte order in an application for appointment of the respondent as guardian. The petitioner was set ex parte in that proceedings and an ex parte order granting custody to the respondent-wife was passed by the Family Court as early as on 26-11-2004. It is submitted at the Bar that the said order has not been challenged so far. No attempt was made to get the ex-parte order set aside. Petition for execution was filed and we are informed that the ex parte order has been executed also. 2. At this stage the appellant has woken up from his slumber and makes attempt to challenge the impugned order. By then a delay of 1525 days has occurred. 3. The sole contention of the appellant is that he was wrongly set ex parte. If that be so, the records are before the court below and it is before that court that the appellant/petitioner must attempt to MAT.395/2009 -2- get the ex parte order set aside. Having not done so, the petitioner can now be heard in this appeal only to advance a challenge on merits against the impugned order. The impugned order is being an ex parte order with no materials having been made available in support of the contentions which the petitioner wants to raise, that attempt would certainly be futile. We are, in these circumstances, of the opinion that if the appellant/petitioner wants to challenge the order setting him ex parte, he must approach the Family Court for such relief and that the Family Court must consider such prayer subject, of course, to the law of limitation. We find no reason to entertain this Mat.Appeal and the application for condonation of delay now. 4. The delay condonation petition and the Mat Appeal are hence dismissed without any fetter on the rights of the petitioner/appellant to move the Family Court for appropriate relief to get the ex parte order set aside. Sd/- R. BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. TRUE COPY P.S. TO JUDGE MAT.395/2009 -3-