Restoration of Ex-party divorce after four months,

This query is : Resolved 

05 April 2010

I had got ex party divorce on 18.11.2009( filed on 12.5.2008) through proper channel from family court,lucknow.She had fully/ truly knowledge regarding this divorce petition.She has singed in summon- acknowledgement which is attached in court file.i have already paying 7500/- per month towards 125 crpc maintenance from past 16 months.

I have got decree of divorce. Still i have not got marriage.
Now she has filed for Restoration of Ex-party divorce after four months, only for linger on divorce.

Pl. help me what should i do....
Can i move a writ petition against this restoration in Highcourt ?because it is not mentinable in eye of law.

niranjan (Expert)
05 April 2010

One can file restoration petition if one is able to satisfy the court that one was prevented by the circumstances.You have right to oppose on ground of limitation etc.and you can go to the highcourt only if the order is against you.

Suryanarayana Tangirala (Expert)
05 April 2010

No u cannot file Writ Petition u can marry after 6 months from date of order, u need to wait till 18-5-2010,as replied by Niranjan Sir u can oppose/contest the Petition filed by u r ex-wife to set aside divorce orders.

Parveen Kr. Aggarwal (Expert)
05 April 2010

Mr. Harish,

She cannot file for restoration but for setting aside the decree passed against her ex parte. Such an application is filed under Order 9, Rule 13 of the Code of Civil Procedure, 1908, which provision reads as: "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 exparte 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 that ex parte decree."

In order to succeed in such an application, the applicant is required to prove:

(i)she satisfies the Court that the summons was not duly served, or
(ii) she was prevented by any sufficient cause from appearing when the suit was called on for hearing.

Unless and until any one of the conditions required under the provision are fulfilled, a decree passed ex parte cannot be set aside.

06 April 2010

your remedy is at the same court by contesting the setting aside petition and the same to be dismissed there itself. If the order is against you by resorting the case, then you can approach High Court by way of CRP

adv. rajeev ( rajoo ) (Expert)
06 April 2010

She cannot file a restoration petition because your petition is already allowed.

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