KAILASH DEVI Vs. PRITI MANDAL ALIAS PRITI AGGARWAL

JUDGEMENT

(1.) A petition under Section 24 of the Special Marriage Act, 1954 (hereinafter referred to as the Act) was presented by Smt. Kailash Devi (for short 'K') on 21/12/1973 for declaring the marriage of 224 Shri 0m Parkash Aggarwal (for short '0') and Smt. Priti Aggarwal (for short 'P') as null and void on the ground that 'K' was the legally wedded wife of '0' and that subsequent marriage of 'O' with 'P' was in violation of Section 4 (a) of the Act and could not take place. '0' admitted the allegation of 'K' but 'P' did not appear and was proceeded ex parte. An ex parte decree declaring the marriage of '0' with 'P' as null and void was passed on 26/8/1974. 'P' who was ex parte then brought an application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure for setting aside the ex parte decree of nullity against her. That application was once dismissed in default but restored on payment of Rs. 10.00 as costs. It was against dismissed in default on 27/5/1975. Thereafter another application for restoration of the original application under Order IX Rule 13 of the Code of Civil Procedure was brought on 6/2/1976. One of the preliminary objections raised was that the application was barred by time. The trial Court came to the conclusion that the application made on 6/2/1976 is governed by the riduary Article 137 of the Schedule to the Limitation Act, 1963 and held the application within time. As issue was framed whether there was sufficient cause for restoration of the application for setting aside the ex-parte decree. 'K' is aggrieved of that decision on the question of applicability of Article 137 and has brought the present revision petition under Section 115 of the Code of Civil Procedure.

(2.) Section 40 of the Act provides that subject to the other provisions contained in the Act, and to such rules as the High Court may make in this behalf, all proceedings under the act shall be regulated, as far as may be, by the Code of Civil Procedure 1908. Any marriage solemnized under the Act could be declared null Avoid on a petition presented by either party......... thereto against the other party by a decree of nullity if the conditions specified in Clauses (a), (b), (c) and (d) of Section 4 have not been fulfilled or the respondent was impotent at the time of the marriage and at the time of the institution of the suit. The ex parte decree of nullity declaring the marriage of '0' and 'P' as null and void was passed. Anapplication underorder IX Rule 13 and Section 151 of the Code of Civil Procedure for setting aside the ex parte decree was filed and dismissed in default. Another application for restoration of the application under Order IX Rule 13 and Section 151 of the Code of Civil Procedure dismissed in default has been made. The consensus of judicial opinion including the view of this Court is that if an application under Rule 4, 9 or 13 of Order IX is itself dismissed for non-appearance of the applicant, a fresh application to restore that application can be filed. The reason for this is that the proceedings contemplated under Order IX are in the nature of a original suit and that by virtue of Section 141, Order IX applies to them. Some other High Courts have taken the view that Section 151 of the Code of Civil Procedure is wide enough to clothe the Court with power to restore an application for rehearing of the suit made under Order IX Rule 13 of the Code of Civil Procedure which had. been dismissed for default. There is no objection to the maintainability of the application. The short question is as to period of limitation during which such an application can be made.

(3.) Article 123 of the Schedule to the Limitation Act, 1963 provides the period of limitation of thirty days for .applications to set aside adecree passed ex parte or to re-hear an appeal or application ex parte. The starting point is the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. The submission of the counsel for the petitioner is that although the application is called an application to restore the application is set aside the ex parte decree, which application itself has been dismissed for default, it really is an application to set aside the ex parte decree, and it may be treated as such. Reliance is placed on "Pitamber Lal v. Dodee Singh"', A.I.R. 1924 All. 503, where this view has. been taken.