INDUBAI Vs. GOVINDRAO

JUDGEMENT

(1.) Order dated 3rd May, 1975 passed by the trial Court rejecting petitioners application for restoration of her case being Misc. Judicial Case No. 28 of 1973 is the subject matter of this revision application therefrom.

(2.) The original proceedings were matrimonial proceedings between the petitioner and her husband, the opponent herein. The husband had filed Hindu Marriage Suit No. 37 of 1972 for divorce. The said suit was decreed ex parte on 7th January, 1973. The petitioner herein filed application Misc. Judicial Case No. 28 of 1973 for setting aside the ex parte decree and for hearing the divorce suit on its own merits and in accordance with law with opportunity to her to defend the same. This application for restoration was, however, dismissed on 17th December, 1973 as the petitioners Advocate, Mr. V.D. Pendse, was not able to attend the Court on that day. It is hence that the petitioner filed the present application Misc. Case No. 4 of 1974 for setting aside the order dated 17th December, 1973 dismissing her Misc. Judicial Case No. 28 of 1973. The trial Court dismissed this application on 3rd May 1975 on the ground that the same was not tenable even under section 151 of the Code of Civil procedure. In support, the trial Court referred to a ruling of this Court in (D.B. Manke v. B. Walwekar) A.I.R. 1923 Bombay 386. It is against this rejection that the petitioner has preferred the present revision application.

(3.) Mr. Sanyal, the learned Advocate appearing for the petitioner, has invited my attention to a subsequent Division Bench ruling of this Court in (Laxmi Investment Co. Pvt. Ltd. Akola v. Tarachand Harbilas and others) A.I.R. 1968 Bombay 250. In this ruling, the Division Bench has considered the earlier ruling of this Court in Manke v. Walwekar, A.I.R. 1923 Bom. 386. In Laxmi Investment Company case supra, the Division Bench has categorically held as follow :