( 1 ) THIS revision petition arises from an order passed by the trial Court in divorce petition No. 530/88 - titled Shri Kimti Lal vs. Smt. Indu Kundra.

( 2 ) THE divorce petition was Filed by the husband Shri Kimti Lal against his wife Smt. Indu Kundra on the ground of cruelty. During the pendency of the divorce petition Shri Kimti Lal died. When the divorce petition came up before the trial Court on 20. 5. 1998 learned counsel for the petitioner/husband submitted that the petitioner had expired. Hence the trial court dismissed the divorce petition observing that as the petitioner had expired the cause of action did not survive. A legal representative of late Shri Kimti Lal has filed this revision petition challenging the order of the trial court dismissing the divorce petition.

( 3 ) ACCORDING to the revision petitioner the trial court ought to have continued with the proceedings in the divorce petition notwithstanding the death of the petitioner/husband. In support of this contention learned counsel for the petitioner relied on the judgment of the Hon ble Supreme Court in Smt. Yallawwa vs. Smt. Shantama (JT 1996 (9) S. C. 218 ). I have considered the said judgment and I find that the said judgment does not in any way support the case of the petitioner. In my view the said judgment is against the petitioner.

( 4 ) IN the above mentioned case before the Supreme Court the respondent Smt. Shantawa was the wife of one Shri Basappa and the appellant Smt. Yellawwa was the mother of the Shri Basappa. Shri Basappa filed a petition for obtaining divorce against his wife Smt. Shantavva on the ground of desertion. The said petitioner was moved by Shri Basappa under Section 13 (l) (i-b) of the Hindu Marriage Act, 1955. The said divorce petition came to be decreed ex parte against the respondent on 15-12-1989. Shri Basappa died on 26-5-1990. Thereafter Smt. Shantawa filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte divorce decree passed on 15-12- 1989. According to Smt. Shantawa she had come to know about the ex-parte divorce decree only on 31-3-1990 and she had not been served with the summons in the divorce petition filed by Shri Basappa. She also filed an application for condonation of delay in filing the application for setting aside the ex-parte decree. The learned trial court held that the delay was not properly explained by Smt. Shantawa and that she was aware of the divorce proceedings much prior to the date on which she alleged to have come to know about the divorce decree. The trial court dismissed the application under Order IX Rule 13 of the Code of Civil Procedure as time barred. Thereupon Smt. Shantawa filed a revision petition in the High Court. The learned Single Judge of the High Court allowed the said revision petition on the ground that Smt. Shantawa being an illiterate lady would not have read the notice published in the newspaper about the pendency of the divorce petition taken out by her husband Shri Basappa against her. The learned Single Judge set aside the ex parte divorce decree and also ordered that the divorce petition be restored to the file. The trial court was directed to take up the matter and dispose it of in accordance with law as expeditiously as possible. The said order of the learned Single Judge of the High Court was challenged in the Supreme Court by Smt. Yellawwa, mother of Shri Basappa, claiming that she was the legal heir of her deceased son. Smt. Yellawwa had opposed the application under Order IX Rule 13 of the Code of Civil Procedure filed by Smt. Shantawa wife of Shri Basappa. One of the contentions raised by the appellant before the Supreme Court was that the respondent s application under Order IX Rule 13 of the Code of Civil Procedure was. not maintainable as Shri Basappa who obtained the decree of divorce against the respondent was already dead by the time the respondent filed the application under Order IX Rule 13