Rakesh Kumar Jain, J.— This appeal is directed against the order of learned District Judge, Karnal, dated 11.8.2007, vide which an application filed under Order 9, Rule 13 of Code of Civil Procedure, 1908 (for short, CPC), for setting aside an ex-parte decree of divorce dated 12.1.2006 has been dismissed.

2. Brief facts of the case are that Reena Devi filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of her marriage with her husband Manga Ram (appellant) on the ground of cruelty.

3. During the pendency of the main divorce petition, application filed by the respondent wife for maintenance pendente lite and litigation expenses was allowed on 28.7.2005. Part payment of maintenance was paid and for the payment of balance amount, the case was adjourned to 26.11.2005. None had put in appearance on the said date, therefore, the appellant was proceeded against ex-parte and the case was adjourned to 17.12.2005 for ex-parte evidence of the wife, which was recorded on 7.1.2006 and on the basis thereof, an ex-parte decree was passed on 12.1.2006.

4. The appellant filed an application for setting aside ex-parte decree on 7.3.2007 alleging that his sister was married to the brother of his wife Reena Devi and a criminal complaint under Sections 406 and 498A IPC was pending in the Court at Gohana. Respondent wife had filed a petition under Section 13 of the Act as a counter blast to that criminal complaint, though a petition under Section 9 of the Act for restitution of conjugal rights was also filed by the appellant in the Court of learned Additional District Judge, Sonepat. It was averred that the said petition under Section 9 of the Act, was withdrawn by the appellant on the assurance given by the panchayat that they would certainly effect a compromise between the parties in the divorce petition. It is further averred that panchayat was convened on 20.11.2005 at Khanpur, wherein it was decided that the respondent wife would withdraw her petition for divorce filed under Section 13 of the Act and resume the matrimonial home, therefore, the appellant was not required to appear in the divorce petition. It is further averred that in a bona fide belief and good faith, on the oral commitment of the respondent wife, he did not appear in the Court when he was proceeded against ex-parte. But when he came to know of the decree dated 12.1.2006, he applied for a certified copy of the judgment and decree and handed over the same to his counsel who fell sick. Therefore, the application could be filed only on 7.3.2006.

5. The said application was contested on the ground of being barred by time. Assertion of the appellant about the panchayat having been convened on 20.11.2005 and that the respondent wife had consented to withdraw the petition was denied.

On the pleadings of the parties, following issues were framed:

1. Whether there are sufficient grounds for setting aside the ex parte judgment and decree dated 12.1.2006 passed in favour of the respondent wife? OPA

2. Whether the application is within limitation? OP A

3. Relief:

6. In support of their respective contentions both the parties led oral as well as documentary evidence. The learned Court below had observed that as per record, the appellant was to appear on 8.11.2005 for making payment of the balance amount of maintenance pendente lite, but he did not appear. Consequently, the case was adjourned to 26.11.2005 on the request of his counsel appearing on his behalf. On 26.11.2005, neither the appellant nor his Advocate put in appearance. Therefore, he was proceeded against ex-parte. It was also found that the application against ex-parte decree of divorce dated 12.1.2006 was time barred.

7. The learned Court below also observed that none of the witnesses appearing on behalf of the applicant/appellant could show that there was any writing executed between the parties at the time of alleged settlement on 20.11.2005. Therefore, oral assertion of the appell