Report No. 136
4.13.3. How to resolve the conflict.-
The consensus view held by Delhi, Karnataka and Madras High Courts is supported by sound reasons. The Gauhati High Court has taken a very narrow view without examining the reasoning of all the other High Courts. There is no reason why the litigants in Assam should suffer hardship and injustice by being obliged to approach the appellate court incurring further time cost and money-cost instead of seeking the setting aside of the 'ex parte' decree in the very court. A statutory clarification is, therefore, required to be made in order to bring about uniformity of law in the areas to which the Act is applicable. It is, therefore, recommended that a new section, say section 28A, should be inserted in Hindu Marriage Act, 1955, on the following lines.:-
"28A. (1) In any casein which a decree is passed ex parte against the respondent, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that summons was not duly served or that he was prevented by sufficient cause from appearing when the case was called on for hearing the Court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the case.
(2) No decree shall be set aside on any such application as aforesaid unless notice thereof has been served en the opposite party."