The main legal point established in the judgment is the computation of delay in filing an application under Order 9 Rule 13 CPC and the adequacy of service of notice through paper publication.

Ramesh Ranganathan, J.

1. Application no.11039 of 2017 is filed to condone the delay of 442 days in filing this appeal.

2. Sri S.K. Jain, learned senior counsel appearing on behalf of the appellant, would submit that, while Suit No.322 of 2010 was filed on 24.09.2010, the said suit was decreed on 22.03.2011 even without notice, in the said suit, being served on the appellant; the appellant came to know of the ex-parte decree when the respondent had filed Criminal Revision No.3769 of 2012 before the Calcutta High Court to have the charges, levelled against them, quashed; a copy of the ex-parte decree was enclosed along with the petition, in Criminal Revision No. 3769 of 2012, which was served on the appellant at her present address of her parents at Burdwan on 11.12.2012; she came to know about the said order only then; both the Section 5 application, and the application filed by her under Order 9 Rule 13 CPC, on 04.01.2013, less than a month after she came to know of the ex-parte decree being passed, was dismissed by the court below by its order dated 16.05.2016, even though the requirement of Order 5 Rule 20 C.P.C. had not been complied with by the respondent, before directing service of notice through paper publication; aggrieved thereby, the appellant herein had filed First Appeal No.110 of 2016, along with an application to condone the delay of 171 days in filing the said appeal; this Court had granted stay, which order remained in force during the pendency of the First Appeal; as this Court was of the view that the First Appeal was not maintainable, and that only an Appeal from Order could have been filed, the appellant sought permission to withdraw the First Appeal with liberty to file an Appeal from Order; the First Appeal was dismissed as withdrawn with liberty to file an Appeal from Order; and it is in such circumstances that the delay of 442 days had arisen in filing the present Appeal against the orders of the Family Court.

3. On the other hand Sri Vivek Shukla, learned counsel for the respondent-husband, would contend that no material has been placed on record to show that the newspaper, by which the notice was caused to be served, was not under circulation in the locality where the appellant resided; the Court below had rightly rejected the application filed under Section 5 of the Limitation Act seeking condonation of the delay in filing the application under Order 9 Rule 13 CPC; and failure on the part of the appellant to prefer an Appeal, from the Order of the Court below, within time, and their choice of a wrong forum by filing the First Appeal, would not justify the inordinate delay in filing this appeal, against the order passed by the court below, being condoned.

4. While the application, under Order 9 Rule 13 CPC, was dismissed by the Court below on 16.05.2016, the appellant herein had filed First Appeal No.110 of 2016 with a delay of 171 days. Just as a First Appeal lies to a Division Bench of this Court, the Appeal from Order also lies to a Division Bench of this Court. As, in either event, the appellant was required only to prefer an appeal to the Division Bench of this Court, the fact that she filed a First Appeal instead of an Appeal against the Order passed by the court below, would not justify her being non suited on the ground of delay during the period when the First Appeal was pending on the file of this Court, i.e. from 16.12.2016 to 11.07.2017. This delay should not, therefore, be included in computing the delay in filing the present appeal.

5. The delay in filing the present appeal on 01.09.2017, should only be confined to the 171 days delay in filing the First Appeal, and the delay of a fortnight in filing this appeal after withdrawal of the First Appeal. This delay is not so inordinate as to justify refusal to condone the delay, when examined in the light of the fact that the respondent-husband had obtained an ex-parte decree of divorce from the appellant who is only a housewife, has no