A party cannot, by marrying immediately after a decree of divorce, deprive the other party of the chance to pursue an appeal.

R.C. Lahoti, J.

1. The wife appellant has come up in appeal aggrieved by an order dated 4-11-1988 passed by the District Judge, Morena, rejecting her application Under Order 9, Rule 13, Civil Procedure Code seeking setting aside of an ex parte decree of divorce dated 19-1-1988 passed in C.O.S. No. 17- A/87 by the District Judge, Morena in favour of the husband/respondent.

2. The application Under Order 9, Rule 13, Civil Procedure Code was filed on 28-3-1988 alleging that process server had come to her on 3-10-1987 but she told him to come on the following day because she wanted to consult her husband before accepting the summons. At that time the couple was living together. In the evening when the husband returned from the office, he told the wife that the proceedings were initiated by him in a fit of anger and the appellant need not bother nor attend the Court because he would have the proceedings terminated which would otherwise gathered the knowledge of the ex parte decree on 17-3-1988 when the husband/respondent told her that the marriage between them had been dissolved by a decree of divorce.

3. The husband/respondent contested the prayer by denying all the averments made in the application.

4. The wife/appellant examined herself and a witness Banshidhar in support of the application. The husband, one Shyamnarayan and Kailash Yadav, the process server, appeared in the witness-box in rebuttal of the appellant's evidence. The trial Court found tha the averments made in the application were not substantiated and hence the application was liable to be dismissed.

5. The, application Under Order 9, Rule 13, Civil Procedure Code having been rejected on 4-11-1988, certified copy of the order was applied for on 16-11-1988 and delivered on 24-11-1988. On 15-12-1988 this appeal was filed within the prescribed period of limitation. The memo of appeal is accompanied by an application for staying the decree of divorce. This Court was not inclined to grant an ex parte order and imply directed a notice to be issued to the respondent. On 17-4-1989 the respondent came out with a reply that he was served in the appeal on 2-3-1989 but he had remarried on 18-1-1989 and hence the appeal had become infructuous.

6. At the hearing the learned counsel for the appellant submitted that the appellant, corroborated by her witness Banshidhar, had made out a case for setting aside the ex parte decree and the Court consistently with the well settled principles applicable to such cases should have taken a liberal view of the things specially when the marital status of a lady was in jeopardy and should have set aside the ex parte decree. She has more vigorously banked upon an additional fact and raised a contention, which has been unanswerable, by proceeding certified copies of order sheets dated 5-10-1987 and 20-10-1987 from the record of C.O.S. No. 17-A/87. Learned counsel submits that the record reveals that on 5-110-1987 the presiding Judge of the Court was on leave; the Court reader adjourned the case to 20-10-1987 for orders; so the date 5-10-1987 could not be deemed to be a date of hearing while she had no notice of the date 20-10-1987 on which day the Court proceeded ex parte. Thus the direction to proceed ex parte and the consequent ex-parte proceedings are both illegal and liable to be set aside. This contention being purely legal and going to the root of the matter has been allowed to be raised and the learned counsel for parties heard.

7. The contention finds implicit support from a decision of this Court in Mohanlal Brijlal v. Manga, 1986 CCLJ Short Note 39. This Court held, in identical facts, that the next date having been appointed for further orders by the Court reader, in the absence of the presiding officer, could not be deemed to be a date fixed for hearing and the party's absence on that date did not give jurisdiction to proceed ex parte.

8. Faced with the situation the learned counsel for the respondent chose to fall back on plea of limi