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Report No. 136

4.13.1. Whether the court passing an ex parte decree can itself set it aside under Order 9, rule 11, C.P.C., or whether the litigant should be obliged to prefer an appeal?-

There is a conflict of decisions on the question whether or not an ex parte decree passed under the Hindu Marriage Act can be set aside on an 4 application made by the respondent under the provisions of Order 9, rule 13, Code of Civil Procedure, 1973. The view of Delhi1, Karnataka2 and Madras3 High Courts is that the court passing the decree has the power to set aside but the Gauhati High Court holds otherwise. The Madras High Court in its latest judgment, concurring with the views of the Delhi and Karnataka High Courts that an ex parte decree can beset aside by that very Court, holds:-

"Under section 21 of the Act, it has been provided that subject to the other provisions of the Act and also to the rules framed thereunder, all proceedings is under this Act shall be regulated as far as may be, by the Code of Civil Procedure. Section 28(1) of the Act states that all decrees made by the Court it in any proceeding under this Act shall be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeal ordinarily lies from the decisions of the Court given in the exercise its original civil jurisdiction.

Encouraged by the provision so made under section 28(1) of the Act, learned counsel for the petitioner was emboldened to contend that the remedy of the respondent was only to appeal and not an application to set aside the ex parte decree. There is no provision either in the Act or in the Rules framed thereunder as to the setting aside of an ex parte decree passed under its provisions. It is also not disputed that the Rules framed by this Court do not provide for it.

In the absence, therefore, of provisions in the Act and also the Rules framed thereunder under section 21 of the Act, the proceedings under the Act stand regulated by the provisions of the Civil Procedure Code. In section 21 of the Act, there is no indication that procedural part of the Civil Procedure Code alone would be applicable and not the substantive part of it. Prima facie, it would appear that in the absence of any restriction to the applicability of the substantive provisions of the Civil Procedure Code an application for setting aside the ex parte decree passed under the Act would lie under Order 9, rule 13,C.P.C."

1. Jang Bahadur v. Mukta Syal, AIR 1986 Del 422.

2. Iravva v. Shivappa Shiddalingappa, AIR 1987 Karn 241.

3. Saraswathi Ammal v. Lakshmi, AIR 1989 Mad 216.

[Emphasis added]

4.13.2. The contrary view taken by Gauhati High Court1 to the effect that an application under Order 9, rule 13, Code of Civil Procedure, for setting aside an "ex parte" decree passed the Hindu Marriage Act, 1955, is not maintainable is expressed thus:-

"It is made clear that subject to the other provisions contained in the Hindu Marriage Act, all proceedings under the said Act shall be regulated, as far as may be, by the Civil P.C. Therefore, the mandatory provisions of section 28(1) of the Hindu Marriage Act cannot be regulated by Order 9, rule 13 of the C.P.C. for setting aside an ex parte decree. All decrees made by the Court in any proceeding under the Hindu Marriage Act also include an ex parte decree. Therefore, only appeal will lie against an ex parte decree as laid down under the mandatory provisions of section 28(1) of the Hindu Marriage Act. An application under Order 9, rule 13, C.P.C. for setting aside such ex parte decree, is not maintainable. The learned Additional District Judge committed error in law. The order dated 7-2-83 is liable to be set aside."

1. Anjan Kumar v. Smt. Minakshi Sarma, AIR 1985 Gauh 44.



Conflicts in High Court Decisions on Central Laws - How to Foreclose and how to Resolve Back




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