IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 Mat.Appeal.No. 159 of 2011() ---------------------------- OP.923/2005 of FAMILY COURT, ALAPPUZHA .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- VINCENT, AGED 82 YEARS, KOCHEEKKARAN VEETTIL, CHETTIKADU MURI, PATHIRAPPALLY, ALAPPUZHA. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA SRI.RAJAN VISHNURAJ RESPONDENT(S): COUNTER PETITIONER --------------------------------- MOLY, AGED 39 YEARS, PUNNAICKAL HOUSE, CHERTHALA SOUTH, PANCHAYATH, THYCKAL P.O., CHERTHALA-688 554. ADV. SRI.JOBY CYRIAC THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ----------------------------------- C.M.Appl.433 OF 2011 & Mat.A.No.159 OF 2011 ------------------------------------ Dated this the 8th day of August, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.An application seeking condonation of delay of 4 days in filing the appeal is before us. The applicant is the second defendant in the proceedings before the family court. He is the father-in- law of woman who sued her husband and his father for return of patrimony and gold, allegedly appropriated. 2.The family court, noticing that both the respondents before it had appeared through counsel and the second respondent, who is now before us, had also appeared once personally, overruled the appellant’s plea that he was unaware of the proceedings and came to know of it only from the execution proceedings. It also held that the process server’s report was specific to the effect that a daughter-in-law of the appellant Mat.A.159/11 2 had received summons on his behalf. The family court thereby refused to condone the delay of 1352 days in applying to set aside the ex parte final order/decree. 3.With this, there is nothing to indicate that notice was not served on the appellant as found by the family court after looking into the process server’s report. We are not, therefore, persuaded to hold that the court below has committed any wrong in the matter of appreciation of evidence or that it had acted illegally in passing the impugned order. The evidentiary value of the process server’s report, which stands with the presumption as to regularity of that official act, is not even impeached. 4.With the above, learned counsel for the appellant very persuasively tells us that even going by the pleadings of the woman; gold was appropriated by the husband and not by the father-in-law. We, therefore, looked into the ex parte order. We find that the amount of Rs.65,000/- is pleaded by the wife Mat.A.159/11 3 as patrimony entrusted to the defendants, though she says that the gold was appropriated by the husband by abusing her physically. She also says that gold was parted to the siblings of the husband also, for being pledged. We do not see that we should go further into that matter because that is an issue that would touch on the merits of the findings in the ex parte decree, which, if has to be looked into, is to be subjected to an appeal, de hors the challenge to the order refusing to condone delay and to set aside the ex parte order. In hand is only an appeal against the order refusing to condone the enormous delay of 1352 days (more than 3 ½ years). 5.With this, learned counsel for the appellant says that execution proceedings have gone ahead and the wife had purchased the properties in court auction. We are told by the learned counsel for the first respondent wife that the marriage has since been dissolved and an application under Order XXI Rule 90 of CPC is pending before the family court to have the sale set aside. Mat.A.159/11 4 Therefore, statutory remedy is available and has been invoked in the execution proceedings. 6.For the aforesaid reasons, we do not find any ground to entertain this appeal. Under such circumstances, no useful purpose will be served by condoning the delay of 4 days. Accordingly, we dismiss the C.M.application seeking condonation of delay and, resultantly, the appeal is rejected without prejudice to contentions, if any, for the appellant in the execution proceedings and also as against the ex parte decree on its merits. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- K.SURENDRA MOHAN, Judge. kkb.10/8.