Maintaiability of the application filed for restoration of appeal.

This appeal is filed by Sumitra Bai, wife of the respondent herein aggrieved order made by the learned District Judge, Chingleput in I.A.No.56 of 1989 refusing aside the ex parte decree made in C.M.A.No.22 of 1988 on his file.

2. The respondent filed O.P.No.53 of 1986 for nullity of marriage under Sec.12 of the Marriage Act. That petition was allowed by the learned Subordinate Judge, Kancheepuram. The wife filed an appeal in C.M.A.No.22 of 1988 before the learned District Chengalpattu under Sec.28 of the Hindu Marriage Act. On 30.1.1989 the said appeal dismissed for default. Then on the same date the wife filed I.A.No.56 of 1989 under Rule 19, C.P.C. for restoring the appeal after setting aside the ex parte decree made C.M.A.No.22 of 1988. In support of that application, it is represented by the learned for the appellant that Mr.Nagu Sah, an advocate practising at Madras who appeared appellant in the lower appellate court and the appellant before the lower appellate court separate, affidavits stating the reasons for their absence. This application was resisted respondent on the ground that the application under O.41, Rule 19, C.P.C. maintainable and that there are no just and sufficient reasons for setting aside the decree also. Learned District Judge, framed two points, namely, (1) whether there is just sufficient cause for the absence of the wife before him and (2) whether the application O.41 Rule 19, C.P.C. is maintainable. On both the points, learned District Judge answered against the wife and dismissed the I.A. Aggrieved with this order, the present appeal by the wife under O.43, Rule 1 (t), C.P.C.

3. Learned counsel for the respondent Mr. S.D.N.Vimalanathan contended that as per of the Hindu Marriage Act, an ex parte decree passed in C.M.A.No.22 of 1988 is a decree an appeal alone should have been filed as against that decree and that the application O.41, Rule 19. C.P.C for restoring the appeal, is not maintainable. Sec.28 of the Marriage Act reads as follows:

“28. Appeal from decrees and orders:

(1) All decrees made by the court in any proceeding under this Act, shall, subject to the provisions of sub-sec.(3), be appealable as decrees court made in the exercise of its original civil jurisdiction, and every such appeal shall the court to which appeals ordinarily lie from the decisions of the court given in the of its original civil jurisdiction. (2) Orders made by the court in any proceeding under this Act under Sec.25 or Sec.26 subject to the provisions of sub-sec.(3), be appealable if they are not interim orders every such appeal shall lie to the court to which appeals ordinarily lie from the decisions the court given in exercise of its original civil juris-diction. (3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of thirty days from date of the decree or order. ” In support of the contention, learned counsel for the respondent relied upon a judgment Anjan Kumar v. Minakshi, A.I.R. 1985 Gau. 44. There, learned single Judge of Gauhati Court held that even ex parte decree in proceedings under Hindu Marriage Act, is appealable and that an application under O.9, Rule 13, C.P.C. for setting aside the ex parte decree in the appeal, is not maintainable. He also relied upon one other decision in Om Prakash Union of India, A.I.R. 1963 All 24Z This is a case under Arbitration Act and the facts case do not apply to the facts of the present case and therefore I am not following.

4. Sec.21 of Hindu Marriage Act reads as follows:

“21. Application of Act 5 of 1908: Subject to the other provisions contained in this Act such rules as the High Court may make in this behalf all proceedings under this Act regulated, as far as may be, by the Code of Civil Procedure, 1908.”

The rules framed by this Court to regulate proceedings under the Hindu Marriage Act, (Central Act 25 of 1955) do not show anything about the procedure to be