IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.1060 of 2011 Dated:19-10-2011 Between: Kotha Karthik. ….Appellant. And Smt. Kotha Gopi Priya. ….Respondent. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.ANo.1060 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Order and decreetal Order passed in I.A.No.152 of 2011 in H.M.O.P.No.150 of 2010 by the Judge, Family Court-cum- Additional District and Sessions Judge, Guntur on 25.07.2011. The appellant herein is the respondent in the main O.P. and he has filed the application in I.A.No.152 of 2011 in H.M.O.P.No.150 of 2010 under Order 9 Rule 13 for setting aside the exparte decree passed against him on 28.01.2011 and the lower Court has dismissed the said application on 25.07.2011. Aggrieved by the same the present appeal is filed by the respondent therein. The respondent herein has filed the said H.M.O.P.No.150 of 2010 under Section 9 of Hindu Marriage Act for restitution of conjugal rights and the appellant herein was set exparte on 31.08.2010, thereafter he has filed an application for setting aside exparte Order and the same was dismissed as the counter was not filed and on the same day, exparte decree was passed against him. Thereafter, he has filed the application for setting aside the exparte decree and the same was dismissed only on the ground that the petitioner has not complied with the conditional Order passed in I.A.No.1155 of 2010, which was filed for setting aside the exparte decree. Admittedly, the appellant herein has filed the F.C.O.P.No.1056 of 2010 for divorce on 19.07.2010 before the Family Court, Hyderabad. Thereafter, the respondent herein has filed H.M.O.P.No.150 of 2010 on 04.08.2010 before the Family Court, Guntur for restitution of conjugal rights. From the above it appears that after receipt of the summons in the Divorce O.P. filed by the appellant herein the respondent herein has filed O.P. for restitution of conjugal rights. Moreover, it was brought to our notice that a Transfer O.P. was pending, for transferring of both O.Ps to one Court, for disposal before this Court. Since both the O.Ps for divorce and restitution of conjugal rights filed by both parties, it is just and proper to give a fair opportunity to appellant/husband to contest the O.P. filed for restitution of conjugal rights by setting aside the exparte decree passed against him. Therefore, in the above circumstances, the impugned Order passed on 25.07.2011 in I.A.No.152 of 2011 in H.M.O.P.No.150 of 2010 is set aside. In the result, the civil miscellaneous appeal is allowed with costs. Consequently, the Order passed in I.A.No.152 of 2011 in H.M.O.P.No.150 of 2010 by the Judge, Family Court- cum- Additional District and Sessions Judge, Guntur on 25.07.2011 is hereby set aside. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:19-10 -2011 Ksp