SHAKUNTALA Vs. DEVI PRASAD SHARMA

JUDGEMENT

(1.) This appeal is directed against an order by which the lower Court has refused to set aside an ex parte decree passed in favour of the respondent under section 13 (I)(b) of the Hindu Marriage Act, 1955. Apparently, this appeal is not against any decree passed under Hindu Marriage Act and, therefore, could not lie under section 28 of the said Act However, section 21 of the Act makes the Provisions of Civil procedure Code, 1908 applicable to all proceedings under the Act. This order, therefore, is appealable under Order 43 Rule 1, Civil Procedure Code. At any rate, a revision against that order will certainly lie. 1, therefore, treat this appeal under Order 43 rule I (d), Civil Procedure Code.

(2.) On merits, I am of the opinion, that this appeal has to be allowed.

(3.) The facts of the case are that the case before the lower Court was fixed for 12-2-80. The appellant who lives in Bhopal was sought to be served personally as also by registered post. The record discloses that the appellant has refused to receive an envelope containing the summons of the suit on 13-2-1980. This service is held good. An ex parte decree was leater on passed on 18-3-80. The appellant alleged that she came to know of this decree somewhere in May, 1983 when she happened to come to Jabalpur where the proceedings were initiated She, therefore, filed an application under Order 9 Rule 13, C P C on 20-6.80. It was stated there in that no summons was served upon her and that she came to know of that decree only during the summer vacation when the Courts were closed. This application was opposed. The order of the lower Court shows that the service was held to be only irregular and the lower Court refused to set aside the ex parte decree in view of the second proviso to Rule 13 of Order 9 C.P.C. In my opinion, the terms of the proviso have not been properly construed by the lower Court. The record clearly shows that the suit was fixed for appellant's appearance on 12-2-80. Although, the appellant alleges that she did not refuse to accept the registered envelope when it was tendered to her, yet, even if, she did refuse it, it was only after the expiry of the date of hearing. That being so, it cannot he said that there was any service of summons upon her. Even if, this alleged service is held to he irregular, as has been held by the lower Court, it is clear that the appellant did not have any time to appear before the Court and answer the respondent's claim, because the date of hearing had already expired. That being so, the second proviso to Order 9 Rule 13, C.P.C.. is not at all applicable.