Court No. - 39

Case :- FIRST APPEAL No. - 557 of 2022

Appellant :- Saurabh Garg And 3 Others

Respondent :- Smt. Priyanka

Counsel for Appellant :- Himanshu Srivastava,Siddhartha

Srivastava

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

The present appeal is directed against the order passed on an

application 8C-2 filed under Section 5 of Limitation Act

whereby the appellant herein sought for recall of the judgment

and order dated 03.01.2019 passed under Section 27 of Hindu

Marriage Act.

It may be noted that the respondent wife had filed a divorce suit

under Section 13 of Hindu Marriage Act, which was decreed

exparte on 25.05.2018. Thereafter, two proceedings were

initiated by the respondent wife under Sections 25 and 27 of

Hindu Marriage Act, which were registered separately as Case

Nos. 192 of 2015 and 193 of 2015; respectively. Both the cases

were decided exparte on 03.01.2019 by a common order.

It is admitted fact of the matter that the appellant herein did not

seek recall of the divorce decree and the recall had been filed

only with respect to the orders passed under Section 25 and 27

of Hindu Marriage Act. In the explanation offered by the

appellant before the Family Court seeking condonation of

delay, it was stated that the appellant came to know about the

order dated 03.01.2019 only on 25.09.2019 when he had

appeared in the execution proceeding, namely Case No. 31 of

2019. The said explanation offered by the appellant was found

false by the Family Court recording a categorical finding that in

the proceeding under Section 31 of Domestic Violence Act,

namely Misc. Case No. 219 of 2016, on the bail application

moved by the appellant herein, the competent Court while

granting bail on 16.01.2019 had taken note of the fact of

passing of the exparte order dated 03.01.2019, in the proceeding

under Sections 25 and 27 of Hindu Marriage Act, as the said

fact was brought to the notice of the Court in the objection filed

by the respondent wife. The result is that the appellant herein

came to know about the exparte order dated 03.01.2019 on

16.01.2019 itself, as the copy of the objection was received by

him and the factum of passing of the exparte decree was noted

by the competent Court while granting bail to the appellant

herein. No explanation could be offered by the appellant in not

seeking recall of the order dated 03.01.2019 even after having

been released on bail in the criminal case pursuant to the order

dated 16.01.2019.

As the appellant had not come with the clean hands before the

Family Court, we do not find any error in the order passed by

the Family Court, in rejection of the delay condonation

application filed in support of the recall application.

The appeal is dismissed being devoid of merit at the admission

stage itself.

Order Date :- 1.8.2022

gp

Digitally signed by GANESH

PRAKASH

Date: 2022.08.05 13:44:09 IST

Reason:

Location: High Court of Judicature at

Allahabad