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GAUHATI HIGH COURT
S. HAQUE, J.
Anjan Kumar Kataki -Appellant
Versus
Minakshi Sarma -Respondent
Civil Revn. No. 80 of 1983
Decided On : 15-03-1984
CIVIL PROCEDURE CODE - REVISION - SCOPE - FAILURE TO PASS ANY ORDER ON APPLICATION FOR EXPEDITIOUS DISPOSAL OF STAY APPLICATION FOR INDEFINITE TIME AMOUNTS TO NON-EXERCISE OF JURISDICTION - REVISION WILL NOT LIE AS NO ORDER IS SOUGHT TO BE SET ASIDE - DIRECTIONS CAN BE GIVEN TO DISPOSE OF APPLICATION.
Fact of the Case:
The petitioner filed a Title Suit for declaration and permanent injunction maintaining that they are the shareholders and duly elected members of the Executive Committee of Pub-Barigog Gaon Panchayat Samabai Samity. An application for interim injunction was also filed along with the suit. The learned Munsiff granted an ex parte injunction which was subsequently vacated by him. The petitioner then preferred an appeal in the Court of the Assistant District Judge No.1, Gauhati and filed an application for interim injunction. The appellate Court below stayed the operation of the impugned order till 22nd Jan., 1984. The Court below has now fixed 2nd Mar. 1984 for hearing the stay application as also the original appeal. In the meantime the Assistant Registrar of the Co-operative Societies, Gauhati asked the Secretary of the Samity to convene the meeting of the Ad hoc Board mentioning therein that there was no injunction from any Court restraining the opposite parties from functioning. The petitioner then filed an application in the appellate Court below praying that the operation of the stay order granted on 12th Jan., 1984 be continued till the disposal of the appeal. The Court below has not passed any interim order on that application.
Finding of the Court:
The Court held that the Court below should have passed some order on the application for grant of stay expeditiously and to pass an order on it on merits and in accordance with law. The Court also held that the application for revision cannot, however, be allowed because no order is sought to be set aside.
Issues: Whether a revision would lie if it appears that the subordinate Court has exercised its jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of the jurisdiction illegally or with material irregularity.
Ratio Decidendi: A revision would lie if it appears that the subordinate Court has exercised its jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of the jurisdiction illegally or with material irregularity. Where the Court had granted a time-bound stay order and thereafter no order had been passed extending the period, though an application in that behalf had been filed for a long time it amounted to non-exercise of jurisdiction. However application under S.115 could not be allowed as no order was sought to be set aside. However to keep an application pending for an indefinite period and not passing any order on the application for expeditious disposal of the stay application itself tantamount to not exercising the jurisdiction and it would be a fit case for a direction to the Court to take up the application for the grant of stay expeditiously and to pass an order on it on merits and in accordance with law.
Final Decision: The Court directed the Assistant District Judge No.1, to pass an order on the application for interim relief which the petitioner had filed before it in the Misc. Appeal No. 5 of 1984 within seven days from the date of the order. In the meantime in the interest of justice the operation of the order which has been impugned before the appellate Court shall remain suspended till 13th Feb., 1984.
Petitioner Shri Anjan Kumar Kataki has preferred this Civil Revision against the Order dt. 7-2-1983 passed by the learned Additional District Judge of Dibrugarh in Misc. Case No. 3 of 1980 arising out of Title Suit (Divorce) No. 1 of 1983 (Original No. 11 of 1978).
2. Petitioner Shri Anjan Kumar Kataki was husband of Smt. Minakshi Devi Kataki. He instituted a suit under S.13 of the Hindu Marriage Act for obtaining decree of divorce against Smt. Minakshi Devi. He obtained an ex parte divorce decree on 31-3-79 in the Court of District Judge, Dibrugarh.
3. Smt. Minakshi Devi filed a petition under O.9, R.13, C.P.C. for setting aside the said ex parte decree. The said petition was registered as Misc. Case No. 84 of 1979 in the Court of District Judge, Dibrugarh and subsequently on transfer, registered as Misc. Case No. 3 of 1980 in the Court of Additional District Judge, Dibrugarh. Shri Anjan Kumar Kataki contested the said Misc. Case on the ground that the case was not maintainable under O.9, R.13, C.P.C. in view of the provisions under S.28 of the Hindu Marriage Act (amended in 1976). However, the Additional District Judge held that a petition under O.9, R.13, C.P.C. was maintainable and accordingly allowed the said petition, set aside the ex parte decree and restored the suit to file by his order dt. 7-2-1983 in Misc. Case No. 3 of 1983. Therefore, Shri Anjan Kumar Kataki has preferred this Civil Revision against the said order.
4. The learned counsel Smt. Mira Sarma, on behalf of the petitioner submitted that only appeal lies against all the decrees including ex parte decree, and has referred S.28(1) of the Hindu Marriage Act (Amended in 1976). She further submitted that a petition under O.9, R.13 C.P.C. is not maintainable in view of the clear mandatory provision of S.28(1) of the Hindu Marriage Act. On the other hand, the learned counsel Shri B. M. Goswami for the opposite party submitted that a petition under O.9, R.13 will also be maintainable in spite of the provisions under S.28(1) of the Hindu Marriage Act, because all proceedings under Hindu Marriage Act are regulated by the Civil P.C. He has referred S.21 of the Hindu Marriage Act. Now the point for decision is, whether a petition under O.9, R.13 is maintainable for setting aside an ex parte decree passed under the Hindu Marriage Act. In this connection both the Ss.21 and 28(1) are to be read together :
Section 21 of the Hindu Marriage Act:- "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of civil Procedure, 1908."
Section 28(1) of the Hindu Marriage Act: - "All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction."
5. It is made clear that subject to the other provisions contained in the Hindu Marriage Act, all proceedings under the said Act shall be regulated, as far as may be, by the Civil P.C. Therefore, the mandatory provisions of S.28(1) of the Hindu Marriage Act cannot be regulated by O.9, R.13 of the C.P.C. for setting aside an ex parte decree. All decrees made by the Court in any proceeding under the Hindu Marriage Act also include an ex parte decree. Therefore, only appeal will lie against an ex Parte decree as laid down under the mandatory provisions of S.28(1) of the Hindu Marriage Act. An application under O.9, R.13, C.P.C., for setting aside such ex parte decree, is not maintainable. The learned Additional District Judge committed error in law. The order dt. 7-2-1983 is liable to be set aside.
6. In the result, this Civil Revision is allowed and the Rule is made absolute. The impugned order
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