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o9 rule 13 of sec, 13 of H,M,Act

(Querist) 17 August 2009 This query is : Resolved 
a lady has got an exparty divorce by filing sec. 13 and remarry and a child is born from new marriage. meanwhile previous husband /respondent has filed an application U/Ord 9 rule 13 of c.p.c . please advice me what is the law about this, is thr any case law that the setting aside of exaerty is of no mean at this stage,
Kiran Kumar (Expert) 17 August 2009
O.9. Rule 13 reads as under:-

Setting aside decrees ex parte

13. Setting aside decree ex parte against defendant

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:

1[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]

2[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exparte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]

Now, further the relevant article from the Limitation Act is, Article 123

the provision reads as under:-

To set aside a decree passed ex prate or to rehear an appeal decree or head ex prate.

Explanation - For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service.

Thirty days(limitation)

The date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree.(time begins from)

now apply the provisions to the facts of ur case, if u r covered then u may get exparte order set aside, the question is when the exparte order came into the knowledge of the husband....wife can not enter bigamous act.

here the limitation period is 30 days, we dont know how husband was not aware of all this and keep in mind the ONUS of PROVING lack of knowledge and lack of proper service of summons will be on husband.

but strange to c, how husband could not know that his wife has divorced him and has married to some other person, and a child is already born out of second wedlock.

n.k.sarin (Expert) 17 August 2009
Nothing can be done in this matter. no court set aside the said decree. second marriage is a valid one .I think the only motive of first husband is to harass the Ex wife.
Advocate SK Rohilla New Delhi (Expert) 17 August 2009
In this case, ex-parte order can be set aside provided that wife has obtained ex-parte decree by concealing the material facts or has obtained the same by exercising fraud upon the court.

The question of limitation will come into play and commenced from the time when it came into knowledge of husband and not from the date of decree.

However, in absence of above, ex-parte order cannot be set aside. It is improtant point to note that marriage and birth of child has not taken place in isolation.

RAKHI BUDHIRAJA ADVOCATE (Expert) 17 August 2009
Under what circumstaces she gt the ex-parte decree? Plz. call me. I want to make clear some facts. My no. is 09871158578/09711364956
sheeba (Expert) 17 August 2009
You have not mentioned whether the parties are bound by hindu marriage act or christian marriage act. please also say on what ground under s.13 is the divorce sought for. and what is the ground under which the husband is seeking setting aside of exparte order.
vinjamuri ranga babu (Expert) 17 August 2009
ur question is lack of details. when she was taken exparte decree and when she was married and when your client filed the set a side the exparte order. unless you furnish this it is not possible proper advice to you or to your client.
dont think otherwise.

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