The main legal point established in the judgment is that the petitioner's approach through a petition under Art. 227 of the Constitution of India, instead of following the appropriate appeal process, was considered an abuse of process of law.

JUDGMENT :

Sandeep Sharma, J.

1. Being aggrieved and dissatisfied with order dated 22.9.2015, passed by learned Additional District Judge-II Mandi, District Mandi, Himachal Pradesh (Sarkaghat Circuit Court), whereby an application under Order IX, rule 13 CPC, having been filed by the applicant/petitioner hereinafter, (applicant) praying therein to set aside the ex-parte judgment and decree dated 12.3.2009 passed in HMA Petition No. 10 of 2008 came to be dismissed, petitioner has approached this court in the instant proceedings under Art. 227 of the Constitution of India, praying therein to set aside impugned order.

2. Learned counsel for the non-applicant/respondent while referring to order 43(d) CPC, states that the present petition is not maintainable as such, same may be dismissed accordingly.

3. Having carefully perused the provisions contained under Order XLIII, rule l(d), this court finds that there is provision of appeal to lay challenge to order, if any, passed on an application under Order IX rule 13 CPC, as such, present petition in the form of petition under Art. 227 of the Constitution of India is not maintainable and as such, same deserves to be set aside.

4. This court finds from the record that before filing the petition at hand, petitioner had approached this court by way of an appeal, laying therein challenge to judgment and decree dated 12.3.2009 passed by learned court below in a divorce petition having been filed by the respondent, but since there was a delay in filing the appeal, an application under S.5 of Limitation Act was filed. Order dated 28.9.2016 passed by a coordinate Bench of this court (Annexure P-3) reveals that the application for condonation of delay being CMP(M) No. 1735 of 2015 was withdrawn by the counsel representing petitioner with liberty to file appropriate petition for assailing impugned order. After passing of aforesaid order by Coordinate Bench of this court, petitioner again instead of filing an appeal under Order XLIII, rule 1(d) CPC, has approached this court in a petition under Art. 227 of the Constitution of India, laying therein challenge to order dated 22.9.2015 passed by learned court below praying therein to set aside ex-parte judgment and decree dated 12.3.2009.

5. More than 11 years have passed after passing of judgment and decree dated 12.3.2009 but till date, petitioner has not been able to get the judgment and decree set aside by filing appropriate proceedings in appropriate court of law, as such entertaining the instant petition under Art. 227 Constitution of India at this stage, would amount to sheer abuse of process of law.

6. Consequently, the present petition is dismissed being not maintainable, alongwith all pending applications. Interim order, if any, shall stand vacated.

7. Shri Ramakant Sharma, learned counsel for the petitioner states that a meager amount has been awarded by learned court below as maintenance to the petitioner and her children, as such, appropriate orders may be passed. Aforesaid prayer made on behalf of learned counsel for the petitioner cannot be entertained in the instant proceedings. Needless to say, the petitioner is always at liberty to approach learned court below in appropriate proceedings, for maintenance.