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 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Mat.Appeal.No. 311 of 2006 ---------------------------- OPG&W.362/2003 of FAMILY COURT, KOTTAYAM .................... PETITIONERS : APPELLANTS ------------------------- 1. ADHAYI JAMES, AGED 68 YEARS, S/O.ADHAYI, THOLANIKUNNEL, PAINGOTTOUR P.O., KADAVOOR VILLAGE, KOTHAMANGALAM. 2. MARY JAMES, AGED 63 YEARS, W/O.ADHAYI, THOLANIKUNNEL HOUSE, PAINGOTTOUR P.O., KADAVOOR VILLAGE, KOTHAMANGALAM. BY ADV. SRI.P.V.ELIAS RESPONDENTS : RESPONDENTS -------------------------- 1. SINDHU @ SUJI, AGED 39 YEARS, NECHUPADDAM, PADINJAREPUTHENPURAYIL HOUSE, KOLENCHERRY P.O., KADAYIRUPPU BHAGOM, KOLANCHERRY, KUNNATHUNADU TALUK. 2. JIJI GEORGE, AGED 40 YEARS, NECHUPADDAM, PADINJAREPUTHENPURAYIL HOUSE, KOLENCHERRY P.O., KADAYIRUPPU BHAGOM, KOLANCHERRY, KUNNATHUNADU TALUK. ADV. SRI.RAJEEV V.KURUP THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ C.M.Appl.No.1913 of 2006 & Mat.Appeal No.311 of 2006 ------------------------------------- Dated this the 16th day of November, 2009 ORDER/JUDGMENT BASANT, J. This application is to condone the delay of 1095 days in filing an appeal. The appeal in turn challenges an order passed by the Family Court dismissing the application for guardianship filed by the appellants. 2. The appellants are paternal grandparents of the minor child. The son of the appellants expired in an accident. The minor child Adai Mariyam Saji @ Ponnu was under the care and custody of her mother, ie. the 1st respondent herein, ie. the widow of the son of the appellants. The appellants had gone before the Family Court earlier with O.P.No.134 of 2000 and by order dt.24.08.01, that petition was allowed in terms of a compromise. The compromise forms part of the decree and detailed stipulations are made about the respective rights of the parties regarding the guardianship and custody of the minor child. 2. The appellants came before court again with the O.P (G&W) No.362 of 2003. In that application, they prayed that the C.M.Appl.No.1913 of 2006 & Mat.Appeal No.311 of 2006 2 question of guardianship and custody may be considered afresh. The learned Judge of the Family Court by the impugned order directed the parties to follow the terms of the earlier compromise in O.P(G&W) No.134 of 2000. It is accordingly that the impugned order was passed. 3. The appellants claim to be aggrieved by the impugned order. To assail that order, they have come before this Court with this appeal. This application is to condone the long delay of 1095 days in filing the appeal. 4. It is submitted before us that during the pendency of this petition & appeal, the 1st appellant has expired. The 2nd appellant wants to prosecute this appeal now. 5. The delay of 1095 days is enormous and gross. We are satisfied that sufficient reasons have not been shown to justify the long and inordinate delay in filing the appeal. The reason urged that the 1st appellant was ill and was ailing and that is why such a long delay occurred, cannot readily be swallowed by any prudent mind. We are satisfied, in these circumstances, that the delay does not deserve to be condoned. 6. In our anxiety to ensure that the rejection of the prayer for condonation of delay does not work out injustice, we C.M.Appl.No.1913 of 2006 & Mat.Appeal No.311 of 2006 3 requested the learned counsel for the appellants to explain the nature of the challenge which the surviving appellant wants to mount against the impugned order. The sum and substance of the grievance raised is that the terms of the earlier order of compromise are not being observed/followed by the 1st respondent. 7. The grievance is not really against the terms of the compromise. But only against the non compliance with the terms of the said compromise. We are satisfied, as rightly found by the Family Court, that that cannot justify a fresh O.P. The parties were advisedly and correctly directed by the Family Court to follow the terms of the compromise in O.P.No.134 of 2000. 8. We are not satisfied that the impugned order on merits warrants interference or that the impugned order in any way works out failure/miscarriage of injustice against the surviving appellant. 9. We are satisfied that the surviving appellant can get the terms of the compromise recorded in O.P.No.134 of 2000 enforced by resort to proceedings in execution and a fresh O.P was not in these circumstances necessary or justified. C.M.Appl.No.1913 of 2006 & Mat.Appeal No.311 of 2006 4 10. The above discussions lead us to the conclusion that the delay does not deserve to be condoned. We are further satisfied that the rejection of the prayer for condonation of delay does not result in any failure or miscarriage of justice. 11. The petition for condonation of delay is, in these circumstances, dismissed. Consequently the appeal shall stand rejected as barred by limitation. We may hasten to reiterate that the surviving appellant's option to get the terms of the compromise order in O.P.No.134 of 2000 executed through the Family Court shall remain unfettered by the dismissal of the O.P by the court below or the rejection of this Matrimonial Appeal by us. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-