SONAL SAXENA Vs. RITESH SAXNEA

JUDGEMENT

(1.) Applicant has filed this Civil Revision challenging the order dtd. 7/4/2025 passed by Second District Judge, Karera, District Shivpuri in Case No. 14/2018 (MJC).

(2.) Facts relevant for decision of this case are that non-applicant (hereinafter referred as 'husband') has suffered an ex-parte judgment and decree of divorce, dtd. 9/10/2018, passed in favour of the applicant (hereinafter referred as 'wife'). He has filed an application under Order 9 Rule 13 CPC for setting aside of the said ex-parte judgment and decree, which is pending consideration before the Court below.

(3.) The applicant herein filed an application under Sec. 151 CPC praying for dismissal of the application under Order 9 Rule 13 CPC as not maintainable. The grounds on which the application is stated to be not maintainable is that by virtue of second proviso to Order 9 Rule 13 CPC, an application can be entertained only when the husband satisfies that there was no service of summons of suit on him. The wife's case is admittedly, the husband was served with the summons of suit and he had entered appearance therein, therefore, his application under Order 9 Rule 13 is not maintainable. The second ground on which the application of husband is stated to be not maintainable is that ex-parte decree can be challenged only in appeal under Sec. 28 of the Hindu Marriage Act, 1955. It is the wife's submission that the mandatory language used under Sec. 28 of Hindu Marriage Act, 1955, (in short 'HM Act') excludes applicability of provisions of Order 9 Rule 13 CPC in respect of ex-parte decree passed under HM Act.