RAVINDRA Vs. PRATIBHA

JUDGEMENT

(1.) This Miscellaneous Appeal is directed against the order dated 17-7-1986, passed by the District Judge, Indore in M.J.C. No. 73/85, and an ex parte decree for divorce was passed in Hindu Marriage Act case No. 139/85. The Appellant moved an application under Order 9 Rule 13 CPC for setting aside ex parte decree. The Trial Court, placing reliance on decision, as reported in AIR 1985 Gau 44, Anjankumar v. Smt. Minakshi Sarma, dismissed the application, holding that the same was not maintainable.

(2.) The learned counsel for the appellant, submitted that Section 21 of the Hindu Marriage Act, (hereinafter called as 'the Act') specifically laid down the applicability of Code of Civil Procedure to such proceedings, as far as possible. It was contended that there is no reason why the procedure for setting aside ex parte decree as laid down under Order 9, Rule 13, CPC, should not be followed in cases under the Act. Counsel for the respondent, on the hand, submitted that the application under Order 9, Rule 13, CPC was made solely with the object of gaining time to prefer an appeal before this Court. It was also pointed out that the application under Order 9, Rule 13, CPC merely prayed for setting aside alimony part of the decree.

(3.) It is not necessary at this stage to go into the question, as to what was actually prayed for by the appellant. The real question raised in this appeal is whether an application under Order 9, Rule 13, CPC is maintainable under the proceedings for setting aside ex parte decree for divorce passed under Section 13 of the Act.