MAN MOHAN SINGH Vs. SURRINDER KAUR

JUDGEMENT

(1.) THE petitioner is husband and the respondent the wife. The petitioner made an application under Section 9 of the Hindu Marriage Act in the court of the District Judge, Jammu, against the respondent. The respondent did not appear despite service and the court proceeded ex -parte against her and ultimately passed an ex -parte decree in favour of the petitioner against the respondent. Some time later an application for setting aside the decree was made to the District Judge, Jammu, who transferred the application for disposal to the Additional District Judge, Jammu. The Additional District Judge allowed the application and set aside the ex -parte decree passed earlier by the District Judge, Jammu. The husband impugnes in this revision application the order of the Addl. District Judge setting aside the decree.

(2.) IN my opinion, the petition must succeed on a short point. An application under Order 9 rule 13 C.P.C. which provision applies to the proceedings under the Hindu Marriage Act, can be allowed or only by the court which passed the decree and no other court. Order 9 rule 13 reads thus : - "13. In any case -in which a decree is passed ex -parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside ; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against his upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint, a day for proceeding with the suit. Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also."

(3.) IT is unmistakeably clear from the above quoted rule that an application for setting aside the ex -parte decree has to be made to the court which passed the decree and that the decree can be set aside only by the Court which passed the decree. It is not understandable how a decree which had been passed Ëœby the District Judge could have been set aside by the Additional District Judgeâ„¢.