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Judgment
MATA No.349 of 2023 and I.A. no.366 of 2023
Mr. Dash, learned advocate appears on behalf of applicant/appellant-wife. He submits, his client is aggrieved by judgment dated 4th August, 2022 of the family Court, dissolving the marriage. The judgment was made ex-parte against his client. She made application for setting aside ex-parte judgment, which was also dismissed by order dated 26th July, 2023. It is thereafter that the appeal was filed and report on delay is 346 days. He submits, delay be condoned and the appeal be admitted.
Mr. Bhuyan, learned advocate appears on behalf of respondent/husband and files objection to the application. He submits, summons was served on applicant. She merely disputed signature in the A.D. card without seeking verification from handwriting expert. Furthermore, no sufficient explanation has been provided for the delay. He submits further, applicant cannot maintain the appeal after having filed for setting aside ex-parte decree and not having had filed appeal from order rejecting the application.
On a judgment and decree made ex-parte against a litigant, there are two remedies available. One is to apply for setting aside of it and the other, to prefer appeal on merits. There have been cases where both remedies have been simultaneously pursued by some litigants. In this case applicant-wife had first filed for setting aside ex-parte judgment and being unsuccessful has filed appeal for testing impugned judgment on merits. This objection is to be decided in the appeal but it cannot prevent it being admitted.
The question then is whether the delay of 346 days is to be condoned. There is no dispute that applicant-wife had applied for setting aside ex-parte judgment. We have ascertained that the dismissal of the application was not on ground of delay. As such, we are satisfied that there were no laches on part of applicant-wife in seeking her remedy. We accept the causes shown and condone the delay.
The appeal is admitted. The application is disposed of.
Mr. Bhuyan waives formal notice of appeal. Lower Court record be called for.
List on 8th January, 2024.
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