N. Narasimharao alias N. Narsingh Rao vs N. Neelamma

Neelam Sanjiva Reddy, J.—This appeal is preferred against the order dated 18-9-1987 in I.A.No. 146 of 1987 in O.P.No. 51 of 1986 passed by the learned Subordinate Judge, Siddipet dismissing the application of the husband to set aside ex parte order passed on 24-2-1987 for restitution of conjugal rights in the above O.P.

The appellant is the husband of the respondent. Respondent filed the above O.P. for restitution of conjugal rights. A notice was issued to the husband which was returned with an endorsement that it was served on him. As he remained absent, the matter was proceeded ex parte and ex parte order was passed on 24-2-1987 in the O.P. The husband filed I.A.No. 146 of 1987 within time under Order IX Rule 13 read with Section 151 of CPC to set aside the ex parte order. He filed an affidavit explaining the reasons for his absence. The petition was opposed by the wife mainly on the ground that it was not maintainable. Learned Subordinate Judge, relying on a decision in Anjan Kumar v. Minakshi Sarma, AIR 1985 Gauhati 44 dismissed the application holding that an application under Order IX Rule 13 read with Section 151 of CPC does not lie in the face of Sections 21 and 28(1) of the Hindu Marriage Act (for short the Act'')- By virtue of Section 21, all the proceedings under the Act shall be regulated as far as may be, by the CPC subject to the provisions contained in the Act and to such rules as the High Court may make in this behalf. Section 28 of the Act, which deals with appeals from decrees and orders, does not exclude the application of Order IX Rule 13 Civil Procedure Code. I am of the view that Section 28 of the Act does not take away the right of a party to have recourse to order IX Rule 13 for setting aside the ex parte order instead of preferring an appeal. Further, it would be in the interest of justice to allow a party to have a remedy in the Court of first instance itself instead moving the appellate Court. This view of mine is fortified by the decision of this Court in G. Chitralekha v. G. Ravi 1987 (1) APLJ 26 wherein the decision in Anjan Kumar Kataki Vs. Smt. Minakshi Sarma, was dissented, on which the learned Subordinate Judge placed reliance.

Learned Subordinate Judge has not considered the merits of the case as to the sufficient cause for setting aside the ex parte decree though the point was framed for the said purpose.

Under the above circumstances, the appeal is allowed. Learned Subordinate Judge is directed to dispose of the I.A.No. 146 of 1987 in O.P.No. 51 of 1986 on merits within three months from the date of receipt of record.