Ramakrishna Pillai vs Vijaya Kumari

R. Basant, J.—C.M. Appl. No. 492 of 2010 is an application to condone the delay of 446 days in filing a matrimonial appeal. The appeal in turn is directed against an exparte order directing payment of amounts.

After discussions at the Bar, the learned Counsel for the petitioner/appellant accepts that the impugned order is an exparte order and that no petition has been filed so far to set aside the exparte order. The counsel was given time to take instructions and make submissions. The learned Counsel for the petitioner/appellant submits that the petitioner/appellant wants to raise a contention that he was wrongly set exparte. That contention ought to be raised legitimately before the court, which set the petitioner/appellant exparte, by filing a proper application under Order IX Rule 13 C.P.C. The learned Counsel for the petitioner/appellant, in these circumstances, prays that the petitioner/appellant may be permitted to withdraw the application for condonation of delay and the Matrimonial Appeal, without prejudice to the petitioner/appellant''s right to move the court below to get the exparte order set aside under order IX Rule 13 C.P.C.

The learned Counsel for the petitioner/appellant raises objections against such prayer on the ground that the impugned order is not an exparte order. According to the counsel, it must be reckoned as an order passed under Order XVII C.P.C. Para.4 of the impugned order makes it crystal clear that the petitioner/appellant was set exparte and the court has proceeded thereafter to pass the impugned order.

We are satisfied that the request of the learned Counsel for the petitioner/appellant can be accepted. The application for condonation of delay and the Matrimonial Appeal are hence dismissed as withdrawn without any fetter on the right of the petitioner/appellant to move the court below to get the exparte order set aside. We may hasten to observe that we have not intended to express any opinion on the acceptability of the request to get the exparte order set aside. It shall be open to both parties to raise appropriate contentions before the court below, if such application to set aside the exparte order is filed.