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Judgment
MATA No. 37 of 2004
Misc. Case No. 7 of 2005
This case is listed today for orders on the application for interim maintenance and the litigation expenses. On consent of the parties, we take up this MATA for hearing and disposal, inasmuch as the consideration remains confined to interpretation of law and the legal position as to whether an ex parte decree granted in matrimonial proceeding is liable to be set aside under Order-IX, Rule-13, C.P.C. Learned Judge, Family Court, Rourkela in Misc. Case No. 24 of 2004 under Order-IX, Rule-13, C.P.C. filed by the present appellant rejected her prayer for setting aside the ex parte decree passed on 6.7.2004 in Civil Proceeding No. 194 of 2002. The appellant''s prayer in that respect was rejected by learned Judge, Family Court, Rourkela following the ratio in the case of Anjan Kumar Kataki Vs. Smt. Minakshi Sarma, . The ratio in that decision supports the finding of learned Judge, Family Court, Rourkela, but we see that the view of the Gauhati High Court is not the correct position of law. On a bare perusal of the statutory provision under Order-IX, Rule 13, C.P.C. read with Section 21 of the Hindu Marriage Act and Sections 10 and 19 of the Family Courts Act read with Rule-37 of Family Court Rules, 1990. we also find from the contention of Mr. Goutam Mishra, learned counsel for the appellant that the above view of the Gauhati High Court was analysed and not found correct in the case of Jang Bhadur Syal v. Smt. Mukta Syal AIR 1986 Del 422. Besides that, in the case of Smt. Yallawwa Vs. Smt. Shantavva, also the apex Court has observed that the application for setting aside the ex parte decree of divorce can be entertained under Order-IX, Rule-13, C.P.C. That being the settled position of law, learned Judge, Family Court should have followed the same.
For the reasons indicated above, we find, the impugned order is not sustainable in the eye of law and accordingly set aside the same. We direct learned Judge, Family Court, Rourkela to consider Misc. Case No. 24 of 2004 under Order-IX, Rule 13 C.P.C. afresh within a period of one month from the date of receipt of copy of this order. Any application for interim maintenance and litigation expenses shall be considered by him in accordance with law.
The MATA and the Misc. case are accordingly disposed of.