An ex parte decree cannot be set aside on account of any irregularity in the service of summons if the court is satisfied that the defendant had knowledge of the proceedings.

( 1 ) THIS civil revision has been filed by the plaintiff, hereinafter referred to as the husband. He had filed a suit for divorce under Section 13 of the Hindu Marriage Act, hereinafter referred to as the Act. The suit was decreed ex parte on the 2nd June, 1973. On the 15th April, 1976 Smt. Prem lata Srivastava, hereinafter refrred to as the wife, made an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree claiming that she came to Know only on the 15th April, 1976 about the ex parte decree. She also moved an application for temporary injunction on the 15th April, 1976 restraining the husband from marrying again. This injunction order was served on the 16th April, 1976. The husband had contracted a second marriage with one Pratima Devi on the 14th April, 1976. The trial court by its order dated 22nd december, 1977 set aside the ex parte decree. The husband has come up in revision against the above order.

( 2 ) IN her application for setting aside the ex parte decree, the wife alleged that on the 13th April, 1976 she came to know that the husband was making preparation for his marriage at some other place. She then went to his house the next day where she came to know that the marital relations between her and the husband had been dissolved by a decree of the court about three years back. The papers were inspected on the 15th April, 1976 and she came to know that the summons of the divorce petition had been got served on her in collusion with the process server. It was also alleged that the summons was issued at the address of Mohalla Vindra-sini Nagar, Gorakhpur, and the witnesses who had attested the refusal of the summons were not residents of locality. On this basis she claimed for setting aside the ex parte decree.

( 3 ) THE husband contested the application inter alia on the following grounds. She had knowledge of the divorce proceedings and the ex parte decree. The summons was served by refusal and had been attested by the witnesses of the locality. She had knowledge of the entire proceedings and never came to his house on the 14th April, 1976. The application had been made only after he had remarried and for the purpose of harassing him.

( 4 ) THE court below examined both the husband and the process server as also one witness pauhari Saran and the wife. The court held that there was no service of summons as contemplated under Order 5, Rule 17 of the Code, for after the refusal the summons should have been pasted on the outer door of the house. The court held that since this was not done, there was in effect no service of summons on the wife as required by law and, consequently, it could not be said that she had Knowledge of the proceedings. The court also did not rely on the evidence regarding the refusal of service for two reasons: Firstly, the court held that it was for the husband to prove by positive affirmative evidence that in fact the wife refused to accept the summons. The affirmative evidence produced by the husband was held not worthy of credence. Secondly, the husband himself had not corroborated the fact of the refusal of summons by the wife. The court relied on the version of the wife to hold that she came to know of the ex parte decree only on the 15th April, 1976.

( 5 ) MR. V. B. Khare, learned counsel for the applicant raised four contentions: Firstly, the court below committed a material irregularity in exercise of its jurisdiction in setting aside the ex parte decree when the wife had knowledge of the suit. Secondly, the court below committed material irregularity in exercise of jurisdiction by holding that the plaintiff had not led positive affirmative evidence to prove the refusal of the summons by the wife. Undue emphasis was laid by the court below on the husbands not corroborating the version of the witnesses of refusal of summons by the wife. Thirdly, the non-compliance of the provisions of Order 5, Rule 17 of the code was at th