IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 Mat.Appeal.No. 385 of 2006() ---------------------------- OP.43/2005 of FAMILY COURT,KOZHIKODE .................... PETITIONER(S): APPELLANT ------------------------ ABDUL KHADER MOULAVI, S/O.MUHAMMEDKUTTY HAJI, THAYIBA MAHAL, NEELESWARAM P.O., KOZHIKODE. BY ADV. SRI.P.K.IBRAHIM RESPONDENT(S): --------------- SULAKHA, D/O.IBRAHIM HAJI, KOORKAN CHALIL HOUSE, P.O.PUTHUR, KODUVALLY. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * C.M.A.No.2290 of 2006 & Mat.Appeal No.385 of 2006 ---------------------------------------- Dated this the 13th day of November 2009 O R D E R & J U D G M E N T Basant,J This C.M.Application is to condone the delay of 101 days in filing a Mat.Appeal. The appeal in turn is directed against an order dismissing an application for restitution of conjugal rights. The respondent has been served and entered appearance through counsel. The learned counsel for the respondent submits that the appellant has re-married during the pendency of the proceedings and, in these circumstances, this Mat.Appeal has become unnecessary and redundant. There is no representation for the appellant/petitioner. The inference is irresistible that the appellant is not interested in prosecuting this appeal. 2. The application for condonation of delay and the Mat.Appeal are hence dismissed for non-prosecution. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge 2. In the result, a) This petition is allowed subject to conditions. b) The delay shall stand condoned and the petition shall stand allowed on condition that the appellant (i) deposits 10% of the entire amount due under the decree till the date of deposit before the Family Court within a period of sixty days from this date. (ii) offers security for the entire balance amount due under the decree on the date of deposit to the satisfaction of the Family Court within a period of sixty days. (iii) It is made clear that if there is any property under attachment, such property can also be offered as security and the same can be accepted by the court if the court is otherwise satisfied about its sufficiency and acceptability. (iv) If the amount is deposited, the same shall be retained in a fixed deposit by the Family Court in any nationalised bank so that the principal amount along with interest accrued shall be payable to the successful party on the final disposal of the appeal. Take all necessary steps within a period of seven days. If steps are taken, call after service is complete. If steps are not taken, call after seven days. By way of abundant caution, we direct that notice in this appeal be issued to the respondent afresh. Such conditions will have to be imposed which shall ensure that the right of the appeal shall not be invoked for the mere purpose of prolonging and protracting the proceedings. If the said conditions are satisfied, the Family Court shall issue a certificate to the appellant who shall produce the same before this court. Call after sixty days or earlier, if the certificate is produced. We make it clear that this order will not in any way fetter the power of the court below to proceed in execution against the husband during these sixty days.