Madhya Pradesh High Court
Sonal Saxena W/O Shri Ritesh Saxnea vs Ritesh Saxnea on 1 May, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:9623
1 CR-475-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 1 st OF MAY, 2025
CIVIL REVISION No. 475 of 2025
SONAL SAXENA W/O SHRI RITESH SAXNEA
Versus
RITESH SAXNEA
Appearance:
Shri Amit Lahoti - Advocate for the applicant.
ORDER
Applicant has filed this Civil Revision challenging the order dated
7/4/2025 passed by Second District Judge, Karera, District Shivpuri in Case
No. 14/2018 (MJC).
2. Facts relevant for decision of this case are that non-applicant
(hereinafter referred as 'husband') has suffered an ex-parte judgment and
decree of divorce, dated 9/10/2018, passed in favour of the applicant
(hereinafter referred as 'wife'). He has filed an application under Order 9
Rule 13 CPC for setting aside of the said ex-parte judgment and decree,
which is pending consideration before the Court below.
3. The applicant herein filed an application under Section 151 CPC
praying for dismissal of the application under Order 9 Rule 13 CPC as not
maintainable. The grounds on which the application is stated to be not
maintainable is that by virtue of second proviso to Order 9 Rule 13 CPC, an
application can be entertained only when the husband satisfies that there was
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no service of summons of suit on him. The wife's case is admittedly, the
husband was served with the summons of suit and he had entered appearance
therein, therefore, his application under Order 9 Rule 13 is not maintainable.
The second ground on which the application of husband is stated to be not
maintainable is that ex-parte decree can be challenged only in appeal
under Section 28 of the Hindu Marriage Act, 1955. It is the wife's submission
that the mandatory language used under Section 28 of Hindu Marriage Act,
1955, (in short 'HM Act') excludes applicability of provisions of Order 9
Rule 13 CPC in respect of ex-parte decree passed under HM Act.
4. The learned Trial Court has rejected the application filed by the
wife holding the application under Order 9 Rule 13 CPC to be maintainable.
5. The learned counsel for the wife submitted that since husband was
admittedly served with the notice of the suit and he entered his appearance in
the suit but later on was proceeded ex-parte, his application under Order 9
Rule 13 CPC is not maintainable. He also submits that in view of the
provisions of Section 28 of the HM Act, only an appeal would lie against the
ex-parte judgment and decree and the application under Order 9 Rule 13
CPC would not be maintainable. In support of his submissions, he relied
upon the judgment rendered in the case of Anjan Kumar Kataki Vs. Smt.
Minakshi Sarma, AIR 1985 Gauhati 44.
6. Considered the arguments and perused the record.
7. The provisions of Order 9 Rule 13 CPC are clear and
unambiguous. It reads as under:-
" Order IX: Appearance of parties and consequence of non-
appearance.
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Rule 1 to 12 xxx xxx xxx
Rule 13: Setting aside decree ex parte against defendants.- In any
case in which a decree is passed ex parte against a defendant, 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 the summons
was not duly served, or that he was prevented by any sufficient
cause from appearing when the suit 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 suit;
Provided that where the decree is of such a nature that it cannot be
set aside as against such defendant only it may be set aside as
against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex
parte merely on the ground that there has been an irregularity in
the service of summons, if it is satisfied that the defendant had
notice of the date of hearing and had sufficient time to appear and
answer the plaintiff's claim.
Explanation-Where there has been an appeal against a decree
passed ex parte under this rule, and the appeal has been disposed
of on any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under this rule for
setting aside the ex parte decree."
8. Thus, an application under Order 9 Rule 13 CPC can be filed in
following two eventuality:
i. firstly, when the summons of suit is not served upon the defendant;
and
ii. secondly, he was prevented by sufficient cause from appearing
when the suit was called on for hearing.
The second proviso, relied upon by the learned wife's counsel, relates
to first eventuality when the summon is not served to the defendant and has
no applicability so far as second eventuality is concerned. For attracting
second eventuality viz. when the defendant was prevented by sufficient
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cause from appearing when the suit was called on for hearing, the defendant
is only required to show sufficient cause of his non-appearance when the suit
was called for hearing.
9. In the facts of present case, the husband has not filed the
application under Order 9 Rule 13 CPC on the ground of non-service of
summons on him. Therefore, the second proviso is not attracted in the facts
of this facts. The reliance on second proviso by wife is thus found to be
misconceived. The application filed by non-applicant therefore, could not
have been dismissed on this ground.
10. The second argument raised by wife's counsel is based upon the
provisions of Section 28 of HM Act which provides for filing of an appeal
against a decree under the HM Act. Section 28 of the said Act is reproduced
hereunder for ready reference:
"28. Appeals from decrees and orders.--(1) All decrees made by the court in
any proceeding under this Act shall, subject to the provisions of sub-section
(3), 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 appeals
ordinarily lie from the decision of the court given in the exercise of its original
civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act, under Section
25 or Section 26 shall, subject to the provisions of sub-section (3), be
appealable if they are not interim orders and every such appeal shall lie to the
court to which appeals ordinarily lie from the decisions of the court given in
exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of ninety
days from the date of the decree or order."
11. The objection raised by wife regarding maintainability of
application filed by husband finds its genesis from language of sub-section 1
NEUTRAL CITATION NO. 2025:MPHC-GWL:9623
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of Section 28 which opens with the words "All decrees made by the court in
any proceeding under this Act...". The applicant submits that the use of the
word "All decrees" makes it mandatory and all decrees, including ex-parte
decree passed in proceedings under the HM Act can be challenged under
Section 28 of the Act only and nowhere else.
12. For deciding this issue, the provisions Section 21 of HM Act are
significant and needs to be considered. Section 21 of HM Act reads as under:
"21. Application of Act 5 of 1908.- Subject to the other provisions
contained in this Act and to such rules as the High Court may
make in this behalf, all proceedings under this Act shall be
regulated, as far as may be, by the Code of Civil; Procedure,
1908."
13. Thus, Section 21 of HM Act makes all provisions of CPC
applicable in proceedings under the HM Act unless applicability of any
provision is otherwise restricted. All provisions of CPC would include Order
9 Rule 13 also. The use of phrase "as far as may be" in Section 21 only
means and is intended to exclude only such provisions of the Code as are or
may be inconsistent with any of the provisions of the Act. The use of words
"All decrees made by the court in any proceeding under this Act..." in
Section 28 cannot be read as restricting applicability of Order 9 Rule 13 CPC
in the proceedings under HM Act. Therefore, in view of provisions of
Section 21 of the HM Act, the applicability of provisions of Order 9 Rule 13
CPC cannot be ousted.
14. The argument of applicant's counsel is unacceptable for yet
another reason. Section 96 of CPC which provides for an appeal against the
decree passed by any court exercising original jurisdiction. The language
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used in Section 96 CPC is same as used in Section 28 of HM Act. Section 96
CPC is reproduced hereunder for ready reference:
" 9 6 . Appeal from original decrees --(1) Save where otherwise
expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie from every decree
passed by any Court exercising original jurisdiction to the Court
authorised to hear appeals from the decisions of such Court."
15. Thus, under Section 96 CPC also an appeal lies against every
decree passed by any court exercising original jurisdiction. If the
interpretation being given by wife's counsel is accepted, then in every decree
passed ex-parte (even other than HM Act), only an appeal would lie under
Section 96 CPC and in no case application under Order 9 Rule 13 CPC
would be maintainable. For the reasons stated above, the application filed by
husband could not have been dismissed on this ground also.
16. In view of the aforesaid discussion, this Court respectfully
disagree with the view taken by the Gauhati High Court in the case of Anjan
Kumar Kataki (supra).
17. In view of the discussion made above, the order passed by the
learned Trial Court cannot be said to be illegal. The same is accordingly
upheld. The Civil Revision is dismissed in limine.
(ASHISH SHROTI)
JUDGE
JPS/-
