KARRA VENKATAMMA Vs. KARRA SEETHAIAH

JUDGEMENT

(1.) This appeal has been referred to a Bench by our learned brother Qamar Hasan, J., as it raises the following questions :- (1) Whether the remedy provided by Order 9, rule 13, is a substantive right like an appeal or review or is it a matter which falls within the expression ' procedure' ? (2) Even assuming that it is a matter of procedure within the meaning of section 5 (4) of the Act, whether an appeal is available to the appellant under Order 43, rule I (d), Civil Procedure Code, by way of analogy? (3) Whether untrammelled by all these technicalities, this is a fit case in which the provisions of Article 227 of the Constitution must come to the aid of the appellant ?

(2.) These questions arose out of an application by the appellant-wife to set aside an ex parte decree obtained by her husband-respondent under section 5(1)(c) of the Madras Hindu (Bigamy Prevention and Divorce) Act (V of 1949) for the dissolution of his marriage with the appellant. In these proceedings a notice of the application under Order 5, rule 9 (3) of the Civil Procedure Code (Madras Amendment) was taken out on the nth March, 1953, but it was returned with a postal endorsement that its acknowledgment was refused by the addressee. As a result of this endorsement the appellant was set ex parte on 19th March, 1953, after which the learned Subordinate Judge examined the respondent on 25th March, 1953 and granted him a decree for dissolution of marriage. The appellant on coming to know of the second marriage went to see the respondent accompanied by her father in order to find out the truth of allegation and it was then that the respondent informed them of his having married a second wife after the dissolution by the Court of the marriage with the appellant. The appellant further alleges that she came to know of the decree then for the first time and on perusal of the Court proceedings she found that she was set ex parte. Immediately thereafter the appellant filed I.A. No. 501 of 1953 on 8th October, 1953, accompanied by an affidavit for setting aside the ex parte decree under Order 9, rule 13, Civil Procedure Code. In the affidavit she asserted the facts briefly set out above and prayed that the ex parte decree may be aside. The respondent opposed this prayer and in the counter stated that he took a second wife after the dissolution and that the appellant is now making an attempt to render that marriage infructuous. It may be stated that both the respondent and the appellant led evidence, on which evidence the Subordinate Judge found that the appellant had in fact refused the postal service and that refusal in law amounted to service. In this view he dismissed the appellant's petition. Against this finding and dismissal of the petition, the appellant has come up in appeal. On the question of the application being barred by limitation, our brother Qamar Hasan, J., held that there was the uncontradicted testimony of the appellant and her witnesses that she came to know of the decree on 4th October, 1953 and as such the petition under Order 9, rule 13, which was filed on 18th October, 1953, was well within time. He further held that on refusal of the notice, the provisions relating to affixture under Order 5, rule 17, which would also apply in cases of service through post under Order 5, rule 9 (3), (Madras Amendment Act of 1951), have not been complied and consequently following the judgment of Rajamannar, C.J., in Murugayyan v. Marudayyammal, the service was declared to be improper. With this view, we respectfully agree.

(3.) The main question which seemed to have given rise to this reference to a Bench is the effect of the absence of any provision in the Madras Hindu (Bigamy Prevention and Divorce) Act, similar to Order 9, rule 13, Civil Procedure Code. It was contended before our learned brother that though section 5 (4) of the said Act makes the procedure provided in Civil Procedure Code in regard to suits applicable to all proceedings under the Act, the only remedy which the appellant had was by way of appeal against the decree of dissolution under section 5 (5) of the said Act and that she could not have recourse to the provisions of Order 9, rule 13, for setting aside an ex parte decree. The argument was that the remedy under Order 9, rule 13, was a substantive remedy akin to an appeal or review and consequently is not available to an aggrieved party unless conferred by the Act. This conclusion is arrived at on the analogy that since a right of appeal and a right of review are substantive rights and have to be conferred by a statute, a light to have an ex parte decree set aside,belongs to the same category, inasmuch as it vacates the decree which has been obtained by one of the parties to the suit. This contention is said to arise on certain observations of a Full Bench in Neelaveni v. Narayana Reddl. The only important point involved in the determination of the questions raised in this appeal is where the provisions of the Code of Civil Procedure are made applicable, is it permissible to divide the Code into provisions which are purely procedural and those that confer substantive rights and to say that the intention of the Legislature was only to confer procedural rights and not the other. Section 5 (4) of the Act is in the following terms :