Failure to establish grounds for setting aside an ex-parte decree under Order 9, Rule 13 of the CPC.

1. - The present appeal filed under Order 43, Rule 1 (d) of CPC arises out of the order dated 30.04.2007 passed by the District Judge, Sikar (hereinafter referred to as "the court below") in Civil Misc. Application No.13/2005, whereby the court below has dismissed the application of the appellant non applicant filed under Order 9, Rule 13 for setting aside the ex-parte judgment & decree dated 20.11.2004 passed in civil misc. application No.96/03, granting decree of divorce to the respondent-applicant under Section 13 of the Hindu Marriage Act.

2. It appears that the marriage of the appellant was solemnized with the respondent at village Kankaria, Tehsil Nawa, District Naguar. After sometime of the marriage, the respondent filed an application being No.96/03 under Section 13 of the Hindu Marriage Act, 1955 before the court below seeking a decree of divorce. In the said application, the appellant was though duly served, did not appear before the court below, and therefore an ex-parte decree dated 20.11.2004 came to be passed by the court below, granting the decree of divorce under Section 13 of the Hindu Marriage Act. The appellant, therefore, filed an application under Order 9, Rule 13 before the court below for setting aside the said decree by filing the application being No.13/2005. However, the said application was also dismissed by the court below vide the order dated 30.04.2007. Being aggrieved by the said order, the appellant has preferred the present appeal.

3. It has been sought to be submitted by the learned counsel Ajay Gupta for the appellant that the appellant is a very poor lady and she was not aware about the legal proceedings pending before the court below. According to the learned counsel for the appellant, the respondent had sought the decree of divorce by making false allegations against the appellant. He has further submitted that the decree of divorce passed by the court below deserves to be set-aside in the interest of Justice. The learned counsel Mr. Ripu Daman Singh Naruka for the respondent, however submitted that the respondent has already remarried and has also two children out of the said marriage. He also submitted that the appellant having been properly served with the summons in the divorce petition proceedings, the application under Section IX Rule 13 was rightly dismissed by the court below.

4. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the court below, it appears that the appellant had failed to make out any ground for setting aside the ex-parte decree under Order 9, Rule 13 before the court below, and therefore her application was dismissed by the court below. Since the respondent has already remarried, there being no stay granted by the court against the decree in question, and has also two children out of the second marriage, no useful purpose would be served in entertaining the present appeal. This Court also does not find any substance in the submissions made by the learned counsel for the appellant. He has failed to point out any illegality or infirmity in the impugned order passed by the court below. Under the circumstances, the appeal being devoid of merits, deserves to be dismissed and is accordingly dismissed.

5. However, it is observed that it will be opened for the appellant to file appropriate proceedings before the appropriate court for claiming maintenance against the respondent, as may be permissible under the law.Appeal Dismissed.

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