SARASWATI DEVI Vs. RAM NANDAN SHARAN

JUDGEMENT

(1.) The petitioner has moved this Court in its revisional jurisdiction against an order of the learned District Judge of Muzaffarpur, by which he has allowed the application of the opposite party for restoring a miscellaneous case for fresh hearing which had been dismissed for default

(2.) The short facts giving rise to the present application are as follows:-- The petitioner is the wife of the opposite party. She made an application under Section 10 of the Hindu Marriage Act (hereinafter referred to as the 'Act') for a judicial separation and other reliefs on the ground that the opposite party was of unsound mind for the last five or six years, in the Court of the District Judge, Muzaffarpur, which was registered as Miscellaneous Case No. 76 of 1961. This case was transferred to the Court of the First Additional District Judge. The opposite party did not appear in spite of all attempts by the Court below and the matter was taken up for ex parte hearing on 14-9-1963, and by his judgment and order dated 30-9-1963, the Additional District Judge allowed the application of the petitioner and passed a decree for Judicial separation. Thereafter on 16-2-1965 an application purporting 1o be under the provision of Order 9, Rule 13 of the Code of Civil Procedure (hereinafter referred to as the 'Code') was filed by the Opposite party for setting aside the ex parte decree. This was registered as Miscellaneous case No. 7 of 1965. In this application various grounds were taken for setting aside the ex parte decree, such as, the question of jurisdiction of an Additional District Judge to decide the application under Section 10 of the Act and others. This application was filed not in the Court of the Additional District Judge which had passed the ex parte decree, but in the Court of the District Judge himself. This miscellaneous case was dismissed for default on 8-6-68. Thereupon the opposite party filed an application under Section 151 of the Code read with Sections 19 and 21 of the Act on the ground that on 8-6-1963, he was ill and was not in a position to attend the Court. The application was resisted by the petitioner, but the learned District Judge by the impugned order allowed the same on a finding that the opposite party was seriously ill on the relevant date and was not in a position to attend the Court and as such he was prevented by sufficient cause from appearing in the miscellaneous case on 8-6-1968 when it was dismissed for default. Against this order, the petitioner has moved this Court in its revisional jurisdiction.

(3.) In support of this application, Mr. Awadh Kishore Prasad, learned counsel for the petitioner, raised a point that the earlier application namely, Miscellaneous case No. 7 of 1965, which was filed under the provision of Order 9, Rule 13 of the Code, having been dismissed for default, the order was appealable under the provision of Order 43, Rule 1 (d) of the Code, Reliance was placed by him in support of this proposition on a Full Bench decision of this Court in Doma Choudhary v. Ram Naresh Lal, AIR 1959 Pat 121 (FB). It was submitted that in this view of the matter, the subsequent application filed under Section 151 of the Code, which was registered as Miscellaneous Case No. 52 of 1968, was without Jurisdiction and the opposite party should have filed an appeal against the order dated 8-6-1968, In Chandrika Singb v. Parsidh Narayan Singh (1960 BLJR 325) = (AIR 1960 Pat 504), Mr. Justice (now Hon'ble C. J.). Untwalia expressed doubts regarding the correctness of the aforesaid Full Bench decision. I have been informed that the correctness of the aforesaid Full Bench decision has been referred to a larger Bench for its re-consideration. Be that as it may, Mr. Mishra, appearing for the opposite party, meets this technical argument by placing reliance upon the provision, of Sub-section (2) of Section 10 of the Act, which reads as follows: