SMT. USHA JAGANI Vs. SHRI BHARAT KUMAR JAGANI

JUDGEMENT

(1.) THIS appeal, is directed against the order passed by the learned Subordinate Judge, Balasore rejecting the Appellants' petition under Order 9, Rule 13, Code of Civil Procedure as barred by limitation.

(2.) SOME relevant facts are stated in brief. Appellant is the wife of the Respondent. When they were living together, the suit property consisting of a house in Balasore town was purchased on 7 -10 -1983 in the Appellant's name by a registered sale deed for consideration of Rs. 26,000/ -. Later, there was discord between the couple and the Appellant left the matrimonial home sometime in 1984. The Respondent instituted the suit for declaration that the suit property was purchased by him Benami in the name of the Appellant and that he has title and possession over the same.

(3.) ON 14 -2 -1985 the Appellant filed a petition under Order 9, Rule 13, Code of Civil Procedure for setting aside the ex parte decree. She stated therein that on account of cruelty perpetrated on her by the Respondent it was not possible to lead a conjugal life and therefore on 28 -6 -1984 she left the matrimonial home and went away to Bombay with her children and ever since she is residing there. Being fully aware of this fact, the Respondent by stating a false address in the plaint misled the Court and caused fraudulent service of summons on her although she was neither aware of the institution of the suit nor was there any occasion for refusal of the Court summons. For the first time she came to know of the ex parte decree on 13 -2 -1985 and so the ex parte decree was liable to be set aside.