^ "^' ^' IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.) MISC. APPEAL N0. ^ ?n OF 2007 APPELLANT : ,Smt. Sushma Jaiswal Wife of Shri Vijay Kumar Jaiswal, aged about 22 years, D/o Shri Bhola Prasad Jaiswal, Resident ' of Village Kuruwan, Tahsil Surajpur, District Surguja (C.G.). VERSUS Vijay Kumar Jaiswal Son of Late Shri Vishwanath Jatswal, aged about 30 years, Occupation Service, (Armed Force 10th Battalion Surguja), Resident of Bouripara, Behind Police Line, Police Station and Tahsil Ambikapur, District Surguja (C.G.). MISCELLANEOUS APPEAL UNDER SECTION 19 f F) OF THE FAMILY COURTS ACT /RESPONDENT HI^H COURT OF CHHATTIS6ARH AT BILASPUft bIVISION BENCH: HON'BLE MR. I.M.QU&DUSI B HON'BLE MR.NAWAL KISHORE A6ARWAL. JJ. Ae^MIojit ft@SBOgsd@?8t M.A.No.48/07 Smt, Sushmo Jaigwal Vs Vijay Kumar Jaiswal Pr@s<gjit^ Mr. Ashok Kumar Shukla, AdvocQte for theappeitant. Mr. Bhupendra Singh, Advocate for the respondent. ORDER fOrai) ;th (iyfl Septetnber, 2010) I.M. Quddusi. J; 1. The appellant has preferred this miscel!an©ousappeal against the order dated 18.7.2007 passed by the Judge, Famiiy Court, Ambikapur, District Surguja (C6) in Misc, Civil Suit No.16/2006 dismjssing the application fited by the appelfant under Order 9 Ru!e 13 CPC for setting aside of the ex-porte judgment and decree dated 31.8.2006 passed in Civil Suit No.5-A/06 on the ground that the same is barred by time. 2. Brief facts of the case, in nutshetl, are that marriage between thfe Qppeticint and the respondent was solemnized on 01.02.2004 and out of their wedlock one male chiid was born. Th© respondent herein filed a civil suit before the Famity Court, Ambikapur against the appellant herein seeking dissoiution of marriage and the Family Court on 31.8.2006 passed an ex-parte decree of dissolution of marriQge in favour of the respondent herein. On coming to know obout the said ex-parte decree, the appeiiant herein filed an apptication under Order 9 Rute 13 CPC before the FamiJy Court for settina aside the ex-porte decree of dissolution of marrJGge. 3. The Famiiy .Court vide order impugned dated 18.7.2007 djsmissed the app^cat-ion of the appeltant on th®ground that ^ n the appellcint had stated in her application that she had got knowledge about the ex-parte decree on 12-11.2006 and therefore thirty days to b©counted from 12,11.2006, but the appiication was fiied on 22.12.2006 that too without explaining the deloy SQtisfactorily. 4. We have heard iearned counse! for the parties at length and perused the record of the FQmily Court concerned. 5. From perusat of the record, it is evident that in the statement given by the appellant before the Family Court on 24.4.2007, she has stated that "^ f^T^R 12,11,2006 ^t ^^ ftTT^ T?^^S:(-'N fe^ sr^TTt^^ ^ gTt?T ^? f^zrr f f^^-^ ^TT^T^Nt 13TC^T ^^". Meaning of the sentence, which is in Hindi, is thot the appeliant had got knowledge that the respondent has obtained an ex-parte decree against her on 12.11.2006. This statement of the appellant does not disclose that she had got the knowiedge about the ex-parte decree on 12.11.2006 at all. She has further stated in her statement that her counsel had informed her about the ex-parte decree and after obtaining certified copy of the same, she got the knowiedge on 14.12.2006 cibout the passing of ex-parte decree against her. 6. In the application filed by the appellant under Order 9 Rule 13 CPC, the appellant has stated that she had got the knowledge about the sx-parte decre-e for the first time on 23.11.2006 w'hen the respondent produced the certified copy of decree before fhe learned Judicial MagigtrQte 1 Clagg, Surajpur and thereafter on 7.12,2006 she applied for certified copy, which became ready on 14.12.2006, and thereafter, the application for setting aside the ex-parte decree was filed on 22.12.2006. Therefore, in these circumstahces. it cannot be said that the application under 1 ^' 'f -<•"•-'' Roshan/- Order 9 Rule 13 CPC was filed after the expiry of period of limitation of 30 days from the date of knowledge, 7. For the aforesaid reasons; we are of the opinion that this appeal deserves to be allowed and the imipugned order is liable to be set aside, Further, since the Family Court has alreody held in Para-11 of the impugned order that there was no service of summons of the Civii Suit No.S-A/06 on the appellant, we have no hesitation to hold that the ex-parte judgment and decree dated 31,8,2006 was passed without service of notice upon the appellant, 8, Accordjngly, without disturbing the finding of the Family Court that there was no service of notice in the Civil Suit No,5-A/06 upon the defendant/appellant herein/ the appeal is allowed, the impugned order dated 18.7,2007 is hereby set aside and the application filed by the appellant under Order 9 Rule 13 CPC for setting aside the ex-parte decree dated 31.8.2006 is hereby ailowed. 9. Since the application under Order 9 Rule 13 CPC is allowed, consequence of the same would be that the ex-parte judgment and decree dated 31.8.2006 passed against the appellant wouid also liable to be set aside, Therefore, we set aside the ex-parte judgment and decree dated 31,8.2006 and restore the Civil Suit No,5-A/06 to its original number which shall be decided afresh by the Family Court concerned in accordance with I'aw as early as possible, preferabfy within a period of three months from the date of the production of certified copy of this order, 10. The partles shall appear before the Family Court, Ambikapur, District Sarguja (CG) on 04.10.2010. 11. No order as to costs. 1 v N. K. Agarwal SdA | ^udge I.M.Quddusi ! Judge