BANSHI DHAR Vs. CHANDRA

JUDGEMENT

(1.) THIS is a special appeal under Sec. 18, Rajasthan High Court Ordinance, 1949 against the order of the learned Single Judge dated August 27, 1987 by which he dismissed the miscellaneous appeal filed by the appellant against the order of the learned District Judge, Jodhpur dated 23. 11. 85 allowing the application of the respondent Chandra kala filed under (X 9, r. 13, C. P. C. for setting aside the ex-parte decree of divorce passed against her. The facts of the case giving rise to this special appeal may be summarised thus.

(2.) APPELLANT Banshidhar filed a petition under Sec. 13, Hindu Marriage Act for divorce against his wife Chandra kala. He obtained an ex-parte decree on 18. 7. 81. On 16. 11. 81, she filed an application under O. 9, r. 13, C. P. C. It was dismissed by the learned District Judge. On appeal, this Court held that Chandrakala was not duly served with the notice and remanded the case for deciding whether the application filed under O. 9, r. 13, C. P. C. was within limitation or not, after necessary inquiry by its judgment dated 12. 9. 83, reported in Chandrakala v. Banshidhar, 1983 (2) Divorce & Matrimonial Cases 422. After inquiry, the learned District Judge held the application of Chandrakala within limitation and set aside the ex-parte decree dated 18. 7. 81 by his order dated 23. 11. 85. Thereafter, the appellant filed S. B. Civil Miscellaneous Appeal No. 16/86. After hearing both the parties, the learned Single Judge dismissed it by his order dated August 27, 1987 which has been challenged in this Special Appeal.

(3.) IT was next contended by the learned counsel for the appellant that the learned Single Judge seriously erred in holding that the point regarding the service of notice could not be agitated before him as it has previously been decided. There is no force in this contention also. IT is not denied that in the said previous miscellaneous appeal 1983 (2) DMC 422 this Court categorically held that Smt. Chandra Kala was not duly served with the notice of the divorce petition. IT has been held in G. Vijaylaxmi v. G. Ramchandran, (12) that the provisions of Sec. 11, C. P. C. are applicable to proceedings under the Hindu Marriage Act, 1955. After the said earlier decision, this point cannot again be agitated.