HIGH COURT OF CHHATTISGARH AT BILASPUR F.A. (M) No.02 of 2008 APPELLANT: Mousami Mohanty (Sinha), W/o Saumitra Mohanty, »°D/o Sh. Awadhesh Kumar Sinha, Krishna Nagar, Behind Carmel School, P.S. Chiraiya Ghat, PO & Distt. Giridih (Jharkhand), Presently at C/o Sh. Mahendra Prasad Sinha, Village Helalpur, P.O. Ibrahimpur, PS Kinjar, District Arawal, Bihar ' Versus Vs t RESPONDENT: Saumitra Mohanty, S/o Shri Shubhanjana Mohanty, aged 29 — E-1, Arvind years, Address Enclave, r Pachperhi Naka, P.S. Tikarapara‘ Raipur, Chhattisgarh \ o (First Appeal under Section 19 (1) ofthe Family Courts Act) Present: Shri Prafulla N. Bharat, Advocate for the appellant. Shri Pravin Das, Advocate for the respondent. Division Bench: Hon’ble Shri Dhirendra Mishra & Hon’ble Shri D.R. Deshmukh JJ. JUDGMENT a (Delivered on 5% January, 2009) w: The following judgment of the Court was delivered by Dhirendra Mishra, J. 1. The instant First Appeal (M) is directegjgd against the order dated 7-12—2007 passed in M.C.P. No.8/2007 whereby learned 1S'Additional Principal Judge, Family Court Raipur, has rejected the application of the appellant under Order 9 Rule 13 of the CPC for setting aside ex—parte decree dated 15-2- 2007 passed in civil suit No.10-A/07. . \ 2. Uncontroverted facts of the case are that the respondent/husband filed an application under Section 13 of the Hindu Marriage Act for decree of divorce on the ground of cruelty. Appellant appeared before the Family Court and 'filed her written statement. Subsequently, she approached the Hon’ble Supreme Court for transferring thermatter from Family Court, Raipur to appropriate Court at Jehanabad, Bihar on the ground that she is the resident of Giridih (Jharkhand) which is situated at a distance of 1500 km and, therefore, she is not able to ’contest the divorce petition at Raipur. The Hon’ble“S‘upreme Court vide order dated 25-1—2007 (Annexure-A/1) issued notice to the respondent and stayed the proceedings before the trial Court until further orders. ‘l-lowever, learned Family Court vide order dated 15‘“ February. 2007 pasSed an eX-parte decree of divorce in favour of the respondent and annulled their marriage dated 13““ July, 2005 by a decree of dissolution of marriage. \h: { 3. The appellant heren applied for setting aside the above ex—parte decree vide her application dated 27-8—2007 with averments that she had communicated the trial Court about filing of transfer of petition vide registered letter dated 28-1 1-2006 and also communicated the stay order dated 25-1—2007 vide her registered letter dated 12—2—2007. She did not attend the proceedings bonafidely believing that the; proceedings have been stayed. She learnt ’ about eX-parte decree on 16—8-2007 and thereafter filed the above- application for setting aside ex—parte decree along with application for condonation of delay in filingthe application. 4. The respondent in his reply to the above application denied the reasons assigned for non-appearance in the divorce proceedings and stated that the ew i appellant was aware about the ex—parte decree even before 28-6-2007 and inordinate delay of 7 months in tiling this application is not bonafide. 5. Learned Family Court, by‘the impugned order rejected the application with a finding that Iimitation would not start from 16-8-2007 i.e. the date of knowledge, as the appellant had already appeared in the proceedings and it was her responsibility to ascertain about the progress of trial. The explanation of the appellant that she bonafidely believed that the divorce 1 proceedl’ng‘s must have been stayed after she sent information about the stay order passed by the Hon’ble Supreme Court through her registered letter dated 12-2-2007 can‘not be construed to be sufficient cause. Copy of the stay order has not been received by the trial Court till date. 6% Shri Prafulla N. Bharat, learned counsel for the appellant argued that learned FamilyCourt was not justified in holding that the appellant has not made out sufficient cause fer delay in filing application for setting aside ex-parte decree. The appellant had communicated the trial Court about the transfer petition as well as passing of the stay order by the Hon’ble Supreme Court through registered letters. The contention of the appellant in this regard was duly supported by the affidavit as well as documents. tr} any case statutory duty is cast upon the Family Court under Order 32-A Rule 5 of the CPC to inquire into facts alleged by the plaintiff and alleged by the defendant before passing the impugned decree in family matters. 7. Onwthe other hand, Shri Pravin Das, learned counsel appearing for the respondent contended that the application for setting aside ex—parte decree was filed after more than 7 months of passing of the decree. The appellant was negligent in not communicating the stay order passed by the Hon’ble Supreme Court and, therefore, the application for setting aside eX-parte decree has been rightly rejected on the ground of limitation, as the appellant has failed to establish sufficient cause for the delay of more than 7 months. Reliance is placed in the matter of Ladu Ram V. Gayatri Devi and others1. E We have heard learned counsel for the parties. As per the documents available on record, uncontroverted facts are that the proceedings before the Family Court were stayed by the Hon’ble Supreme Court v‘ide order dated 25-1—2007 and communication about the same was received by the Family Court on 21-5—2007 from theHon’ble Supreme Court v whereas, decree was already passed on 15-2-2007. The appellant has already filed her written statement before the Family Court on 5-12-2007 (Annexure—A/7). Her application dated 12-9-2006 (Annexure-A/12) for expenses to be incurred in attending Court proceedings was also pending before the Family Court. 10. lt is settled law that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb suCh finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly ’I/ 1 AIR 2005 Noc 7 (RAJ.) 11. ln the matter of Mulraj V. Murti Raghunathji Maharajz, while considering the effect of stay order under Order 41 Rule 5 and Order 39 Rule 1, Sections 24 and 151 ptthe CPC, it has bee'n held that order of stay is addressed to the Court whereas order of injunction is passed against party and it has been further held<that in case of stay order, as opposed to order of injunction, court to which stay order is addressed does not lose jurisdiction to deal with execution unless it had knowledge of stay. However, even after stay is ”brought to its notice, it had power to setaside proceedings taken between time when stay order was issued and time when it was brought to its notice, if it is asked to do so and it considers that it is necessary in interest ofjustice that interim proceedings should be set aside. Where no steps are taken to set them aside, they remain good. 2 AIR 1967 Supreme Court 1386 untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open G to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. 12. In the matter of Ladu Ram (Supra), learned Single Judge of the Rajasthan v' High Court rejected the appeal of the defendant for setting aside ex—parte award, which was filed after 7 months on the ground that the appellant failed to established sufficient cause for his non-appearance before the trial Court. 13. ln the instant case, as we have observed, the appellant had already filed her ‘3 written statement in the matrimonial dispute; her application for litigation expenses for attending the Court proceedings was pending before the Family ; / ® Court; the appellant being the resident of Jehanabad (Bihar) had filed transfer petition before the Hon’ble Supreme Court and in the said petition, the Hon’ble Supreme Court had stayed further proceedings before the Family Court vide order dated 254-2007; the same was duly communicated by the Registry of the Supreme Court in the month of May, 2007; the appellant herself has sent the stay order in the month of February, 2007 through registered post, though not received by the Family Court till passing of the impugned order; in these circumstances, the Family Court ought to have held ,s that the appellant had shown sufficient cause for not attending the divorce t proceedings keeping in view the fact that Hon’ble Supreme Court had stayed the further proceedings even before the impugned decree was passed. lt is strange that learned Family Court has rejected the application for setting aside ex—parte decree on technical ground with an observation that the appellant was duty bound to ascertain the status of the case before the Family Court, as she has already caused her appearance on earlier dates,‘ ignoring the undisputed fact that the proceedings were stayed by the Hon’ble __ Supreme Court on a transfer petition filed by the appellant. 14f For the aforesaid reasons, the instant appeal is allowed and the impugned order is set aside. The appellant has assigned sufficientJeasons for her non- appearance in the Court proceedings and, therefore, her application for setting aside ex-parte decree is hereby allowed. The parties shall now appear before learned Family Court on 27thlV|§[EhL_2£0,&., Sdl- t K // b Deshmukh Sd/- Dilip Raosahe l DI-MNDRA MEI-IRA 7’ Judge V V Judge Ar,,\ 5531/2000 Barve