LexSMT. YALLAWW versus SMT. SHANTAVVA
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A SMT. YALLA WW A v. SMT. SHANTAVVA OCTOBER 8, 1996 B [N.P. SINGH AND S.B. MAJMUDAR, JJ.) Hindu Maniage Act, 1955--Section 13(1 )(i-b )-Divorce Petition by lms- band-Ex parle decree-Application under Order IX Rule 13 CPC for setting aside exparte decree-Maintainability-Procedure of substituted service of C notice-Validity of-Respondent wife an illiterate lady-Sufficient cause for condoning the delay in filing application-Exparle decree rightly set aside. Civil Procedure Code, 1908---0rder IX Rule 13-Application for setting aside exparle decree-Delay in filin~ondonation application-Procedure of substituted service of notice-Respondent an illiterate lady-Sufficient D cause for delay in filing applicatio11-'-Expa1te decree rightly set aside. E F Civil Procedure Code, 1908---0rder XX!!, Order IX, Rule 13-Abate- ment-Divorce Proceedings-Ex-pmte decree-Death of decree holder-Ap- plication for setting aside expmte decree-Maintainable-Appeal against dismissal of application-Whether abates-Held, no. Civil Procedure C<Jde, 1908---0rder XLIII, Rule J(d)-Appeal against order refusing to set aside ex-parle divorce decree-Maintainable. Respondent's husband, B, filed a divorce petition u/S 13(1)(i·b) of the Hindu Marriage Act, against the respondent on the ground of deser- tion. The divorce petition was decreed exparle. Husband of the respondent died on 26.5.1990. It is thereafter that: the respondent filed an application under Order IX Rule 13 CPC for setting aside the ex-parle divorce decree passed against her alleging that she had come to know about the decree only on 31-3-1990 and that she was not served with the summons in the G divorce petition filed by her husband. She also filed an application for condonation of delay in filing the miscellaneous case for setting aside the ex parle decree. The trial Court dismissed the respondent's application under 0. IX R. 13 CPC as time barred, holding that the delay was not prop~rly explained and that the respondent was aware of the divorce H proceedings much prior to the date on which she was alleged to have come . 268 - YALLAWWAv. SHANTAWA 269 to know about the divorce decree. Revision filed u/s 115 CPC was allowed A on the ground that the respondent being an alliterate lady would not have read ~he notice published in the newspaper about the pendency of the divorce proceeding against her and, therefore, this was a fit case for condoning the delay in filing the application under Order IX Rule 13 CPC and also for setting· aside the exparte decree. Appellant, mother of B filed B this appeal against the order of the High Court. The appellant submitted that the respondent was duly served by way of substituted service under O. V R. 20 CPC; that in spite of the publication of notice of pendency of the Hindu Marriage Petition in the newspaper C having circulation in the local area, the respondent did not contest the proceedings; that the respondent had knowledge of the exparte decree at least from the day on which she was served with the summons on 1.3.1990 and still she filed miscellaneous application as late as on 3.7.1990 and she had made out no case for condoning the delay in filing the application; that the respondent's application under O.IX. R. 13 CPC was not main- tainable as deceased B who had obtained the divorce decree against the respondent was already dead by the time the respondent filed the applica- D tion for setting aside the exparte decree as the proceedings by way of that application had stood abated as divorce proceedings represented a per- sonal cause of action both for the husband as well as the wife and E consequently the right to sue had not survived for challenging the exparte decree after the death of decree-holder husband and if such an action survives and the challenge to a decree exparte or bipartite for divorce is found to be maintainable at the instance of the aggrieved spouse against whom the decree has been passed then persons who are n11n spouses will F have to be joined in the litigation and this would go counter to Sec. 13 of the Hindu Marriage Act. The respondent wife submitted that the revision application ought to have been treated as an appeal from the order by the Trial Court as appeal did lie against the order refusing to set aside the exparte decree as per the provisions of Order XLIII R. l(d) CPC; that she G being an illiterate lady had not read and could not have read the newspaper p
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