The main legal point established in the judgment is the correct application of the rules for the recall of an ex parte order and the determination of the maintainability of the appeal under Order XLIII, Rule 1(d), C.P.C.

Ritu Raj Awasthi, J.

1. Heard.

This First Appeal From Order has been filed against order dated 12.5.2014 passed by Principal Judge, Family Court, Ghaziabad, in Regular Suit No. 2135 of 2011, whereby the learned Court below has rejected the application filed under Order IX, Rule 7, C.P.C.

The brief facts of the case are that a suit under section 13(1), Hindu Marriage Act, 1955 was filed by the respondent. The appellant being the defendant had put in appearance. She had also moved an application under section 24 of Hindu Marriage Act which was allowed.

2. As per Counsel for the appellant, the appellant was regularly appearing in the regular suit, however, she could not appear on last three dates i.e., on 9.9.2013, 8.10.2013 and 25.10.2013. The learned Court below vide order dated 25.10.2013 had directed to proceed ex parte against the defendant. The order dated 25.10.2013 on reproduction reads as under:

3. The appellant-defendant on coming to know about the said order had moved an application for recall under Order IX, Rule 7, C.P.C. The application moved under Order IX, Rule 7, C.P.C. is on record as Annexure No. 3 to the affidavit, perusal of which indicates that the appellant had prayed for recall of order dated 25.10.2013 and provide her opportunity of hearing before passing a final order.

4. Learned Counsel for the appellant vehemently submits that the application for recall moved by the appellant was wrongly transcribed as an application under Order IX, Rule 7, C.P.C., in fact, it was an application under Order IX, Rule 13, C.P.C.

5. Under Order IX, Rule 13, C.P.C. the procedure is prescribed for setting aside the decree ex parte against the defendant. For convenience Order IX, Rule 13, C.P.C. is reproduced herein below:

"13. Setting aside decree ex parte against defendants.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."

6. From the perusal of order dated 25.10.2013, it is emphatically clear that it was not a final order or decree in the suit. The Court by the said order had directed to proceed ex parte against the defendant i.e., present appellant, as such, the application filed under Order IX, Rule 7, C.P.C. cannot said to be an application under Order IX, Rule 13, C.P.C.

7. The present appeal has been filed under Order XLIII, Rule 1(d), C.P.C. which on reproduction reads as under:

"1. (d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;"

Since the order impugned cannot be said to be an order under Order IX, Rule 13, C.P.C. therefore, I am of the considered view that the instant appeal under Order XLIII, Rule 1(d), C.P.C. is not maintainable.

The appeal is accordingly dismissed.

It would be open to the