KOTIKALAPUDI LAKSHMI Vs. KOTIKALAPUDI KONDALA RAO

JUDGEMENT

(1.) In O. P. No. 163 of 1967, the Subordinate Judge, Visakhapatnam, made an ex-parle decree for restitution of conjugal rights, on the petition of the respondent against his wife. The decree was made on 15-11-67 and the application to set aside the ex-parte decision was made on 14-3-1968. The application was rejected by the lower Court on the ground that it is statute-barred, it having been presented beyond the period of thirty days allowed by law The lower court held that due process was not lacking in effecting the service of notice of the original petition on the respondent, Accordingly, it was of opinion that the period of limitation for having ex-parte decree set aside commenced from the date of the decree itself. The petition was held on that ground to be time barred and it was dismissed in limine The unsuccessful spouse has preferred this appeal.

(2.) The short point for consideration is, whether there was due service of the petition. If the answer is in the affirmative and that was how the lower court answered it, the exparte decree cannot be asked to be set aside on a petition filed beyond the thirty days time allowed by law. On the contrary, if the appellant's submission were to be accepted, the petition should not have been thrown out as time-barred but should have been considered on merits. The original petition was presented to the Subordinate Judge's court on September, 13, 1967. Notice to the respondent was issued on the 29th day of that month. The notice was in the prescribed form. It called upon the respondent to appear in court on the 3rd November, 1967, It warned the respondent that in default of her appearance, the issue would be settled and the petition determined in her absence. Tt specified that on or before the date fixed for hearing, the respondent was at liberty to file her pleading in answer to the husband's suit; The process server visited the villago whereat the appellant was residing but was told when he called at the icsidence, that the appellant was absent at Visakhapatnam and was likely to be away for about 20 days. This information the process server, got from the inmates of the house as also from some others in the village. He, therefore, affixed the summons to the outer door of the residential house on 10-10-1967 ; and in his report to the court, detailed the process adopted by him. This was followed by the sworn statement of the process-server made before the Nazir on 13-10-1967 and the Court held the service to be sufficient cient and set the wife exparte on 3-11-1967. The decree for restitution was made in tha absence of respondent on 15-11-57.

(3.) This application to set aside the decree was made on 14-3-196&4 The husband has taken the objection that it was barred by limitation and this objection prevailed in the court below.