Sec.5 Limitation Act - Delay 153 days condoned and Or. 9 Rule 13 C.P.C. = No notice not served on wife , husband obtained exparte decree and got married after knowing this petition for Set aside exparte decree - can be allowed even though husband got married again basing on exparte decree it is not a ground to dismiss the petition = Smt. Rachokonda Parvathi W/o. Venkata Subrahmanyam Rachakonda Venkata Subrahmanyam S/o.late R. Venkata Ramana. = http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=9784

Sec.5 Limitation Act - Delay 153 days condoned and  Or. 9 Rule 13 C.P.C. =  No notice not served on wife , husband obtained exparte decree and got married after knowing this petition for Set aside exparte decree - can be allowed even though husband got married again basing on exparte decree it is not a ground to dismiss the petition =

Rajasthan High Court in Surendra
Kumar v. Kiran Devi1.  It is difficult to treat that as a precedent for the
proposition that whenever one of the spouses contacts second marriage, after
obtaining a decree for divorce, the decree cannot be set aside thereafter.
Further, in the instant case, the trial Court did not record any finding to the
effect that the notice in the O.P. was served upon the petitioner.

7.  Hence, the Civil Revision Petition is allowed and the delay of 153 days in
filing the application to set aside the ex parte decree is condoned.  Since the
reasons that weigh with the Court for condonation of delay would hold good for
setting aside the ex parte decree, the I.A. filed under Order - XXXIX Rule - 13
CPC was allowed.  As a result, the ex parte decree, dated 09-06-2000, in O.P.
No.123 of 2000 in the Family Court, Visakhapatnam, is set aside.  The trial
Court shall decide the matter on merits, after giving opportunity to both the
parties.  There shall be no order as to costs.

HONOURABLE SRI JUSTICE L. NARASIMHA REDDY          

CIVIL REVISION PETITION No. 6034 OF 2010  

03-04-2013

Smt. Rachokonda Parvathi W/o. Venkata Subrahmanyam    

Rachakonda Venkata Subrahmanyam S/o.late R. Venkata Ramana.    

Counsel for the Petitioners: Sri  Ravi Cheemalapati

Counsel for the Respondent: Sri G. Ram Gopal

<Gist:

>Head Note:

?Cases referred
AIR 1997 Rajasthan 63

ORDER:
Petitioner is the wife of the respondent.  Their marriage took place on 30-10-
1996 at Visakhapatnam.  The respondent filed O.P. No.123 of 2000 in the Family
Court, Visakhapatnam for divorce.  The O.P. was decreed ex parte on 09-06-2000.
She filed an application under Order - IX Rule 13 CPC with a prayer to set aside
the ex parte decree.  Since there was delay of 153 days in filing it, she filed
I.A No.480 of 2006.  In the affidavit filed in support of the I.A., she stated
that her parents are from the State of Chattisgarh and when she joined the
respondent after marriage at Visakhapatnam, she was subjected to harassment
through demand of additional dowry.  Reference was made to Crime No.193 of 1998
filed under Section 498-A IPC in the Mahila Police Station, Raipur, Chattisgarh
and MJC No.539 of 2001 in the Family Court, Raipur, filed for maintenance.

2.  According to the petitioner, the respondent appeared before the Family
Court, Raipur on 04-10-2005 and at that time he stated about the ex parte decree
obtained by him.  The petitioner stated that she was not served with the notice
in O.P. filed by the respondent and that since she came to know about the
decree, she filed the applications.  The I.A. was opposed by the respondent.
The trial Court dismissed the I.A. through order, dated 06-11-2007.  Hence, this
revision.

3.  Heard Sri Ravi Cheemalapati, learned counsel for the petitioner and Sri G.
Ram Gopal, learned counsel for the respondent.
4.  While the petitioner hails from the State of Chattisgarh, the respondent is
from the State of Andhra Pradesh.  They got married in the year 1996 at
Visakhapatnam.  Shortly, thereafter, disputes have arisen between them and the
petitioner had to go back to the house of her parents at Raipur.  Cases under
Sections 498-A IPC and 124 Cr.P.C., were filed in the Courts in that State.
Almost at the same point of time, the respondent filed O.P. No.123 of 2000 in
the Family Court at Visakhapatnam.  The petitioner came to know about the ex
parte decree passed in the O.P., filed by the respondent only when he appeared
before the Court in the year 2005, and stated about it.

5.  The delay of 153 days, in filing an application by a woman spouse to set
aside the ex parte decree passed against her, deserves to be condoned by any
standard, particularly, when she pleaded that she did not receive notice in the
O.P. and when she is residing in another State.  The only reason that weighed
with the trial Court in refusing to condone the delay was that the respondent
had married another woman.  That hardly constitutes any basis to defeat the
rights of the petitioner.  The very fact that the proceedings are pending in the
Courts at Raipur and Visakhapatnam, discloses that the relationship was not
cordial and the acts resorted to by the respondent in obtaining the ex parte
decree and then immediately contacting second marriage can not at all be
countenanced, much less the Court can put a seal of approval upon it.  Though
the status of the second marriage contacted by the respondent may be at a stake,
it cannot outwit the gross injustice done to the petitioner.
6.  Reliance is placed upon the judgment of the 
Rajasthan High Court in Surendra
Kumar v. Kiran Devi1.  It is difficult to treat that as a precedent for the
proposition that whenever one of the spouses contacts second marriage, after
obtaining a decree for divorce, the decree cannot be set aside thereafter.
Further, in the instant case, the trial Court did not record any finding to the
effect that the notice in the O.P. was served upon the petitioner.

7.  Hence, the Civil Revision Petition is allowed and the delay of 153 days in
filing the application to set aside the ex parte decree is condoned.  Since the
reasons that weigh with the Court for condonation of delay would hold good for
setting aside the ex parte decree, the I.A. filed under Order - XXXIX Rule - 13
CPC was allowed.  As a result, the ex parte decree, dated 09-06-2000, in O.P.
No.123 of 2000 in the Family Court, Visakhapatnam, is set aside.  The trial
Court shall decide the matter on merits, after giving opportunity to both the
parties.  There shall be no order as to costs.

8.  The miscellaneous petitions filed in this revision shall also stand disposed
of.
____________________
L. NARASIMHA REDDY, J  
April 03, 2013.

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