IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.316 of 2007 SMT.SHOBHA DEVI wife of Sri Krishna Kumar Rajak, resident of C/o Tapeshear Prasad, East Lohanipur, P.S. Kadamkuan, District and township of Patna at present 33, Sharli Road, Shandra West Mumbai …… Appellant (Petitioner in the court below Versus 1. Sri Krishna Kumar Rajak, son of Sri Tapeshwar Prasad , resident of East Lohanipur, P.O. and P.S. Kadamkuan, District and Township of Patna …………….Respondent lst Set (Opposite Party in the court below) 2. Sri Bishwanath Rajak, son of Late Suraj Rajak 3. Smt Titi Rajak, wife of Bishwanath Rajak Both residents of 33, Sharli Road, Shandra, West Mumbai ……..Respondents 2nd set (Petitioners No. 2 and 3 in the court below ----------- 11. 05.05.2010 Heard learned Counsel for the appellant and the learned Counsel for the respondents both on the limitation petition and the main appeal. The respondent no. 1 filed Matrimonial Case No. 245 of 1996 for divorce. It was allowed by an exparte order on 29.11.2001. The appellant preferred an application under Order 9 Rule 13 C.P.C. for recall of the exparte decree on the ground that no summons were served upon her and she remained unaware of the proceeding. No sooner that she was made aware she filed an application for inspection of the records and preferred an application for recall expeditiously. Learned Counsel for the appellant contended that there is a finding that summons were not served upon her properly and therefore there was no valid service. Ext. ‘A’, the letter dated 23.12.1999 addressed to the Senior Superintendent of Police, Patna, alleged to have been written by her and which was foundation to disbelieve her date of knowledge of the exparte decree, has not been proved in its contents but only her signature has been proved. The submission therefore was that exparte decree was fit to be set aside. Counsel for the respondent no. 1 contended that Ext. ‘A’ was marked without any objection. The respondent no. 1 has since then remarried on 13.7.2008 and has also got a child from the marriage on 16.9.2009. The letter dated 23.12.1999 marked Ext. ‘A’, specifically acknowledges that the appellant was aware of the divorce proceeding on 23.12.1999. It has been marked as an exhibit without any objection. Moreover the defence of the appellant that she got knowledge of the exparte decree dated 29.11.2001 only on 9.4.2002 and whereafter she filed an inspection slip in the Matrimonial Case and after becoming fully aware of the proceeding preferred application for recall, has been disbelieved on facts as there was no inspection slip dated 9.4.2002 of the appellant on record. We are not satisfied that the appellant has made out a case calling for interference with the order dated 19.5.2007 rejecting her application under Order 9 Rule 13 C.P.C. Our view is further reinforced from the subsequent development particularly of the respondent having remarried and begotten a child from that marriage also. We are informed that the appellant has preferred an application for maintenance. That has to be decided on its own merit in accordance with law. The appeal stands dismissed. (Navin Sinha,J.) (Dinesh Kumar Singh,J.) Snkumar/-