IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.119 of 2010 MANJU DEVI, W/o. late Surendra Kumar Bhagat, C/o. Sri Subodh Kumar Bhagat, Q. No. G1/2 J.S.E.B. Colony, P.O. Manipeeth, District- Jamshedpur (Jharkhand) Versus SUBODH KUMAR @ MANOJ KUMAR, S/o. late Surendra Kumar Bhagat, Q. No. G1/2 J.S.E.B. Colony, P.O. Manipeeth, District- Jamshedpur (Jharkhand). ----------- 02. 22.03.2010 Heard learned counsel for the appellant and perused the impugned order dated 11.01.2010 whereby Misc. Case No. 1 of 2009/4 of 2009 has been dismissed by the Principal Judge, Family Court, Munger. By the impugned order the learned Court-below has rejected the prayer of the appellant under Order IX Rule-13 of the Code of Civil Procedure for setting aside an ex parte judgment dated 18th December 2004 by which Matrimonial Divorce Suit No. 41 of 1998 filed by Surendra Kumar Bhagat, the husband of the appellant was decreed on a finding that the appellant was not willing to live with her husband rather she is willing to live in adultery with a truck driver. It is not in dispute that subsequently the husband of the appellant died on 26.11.2005 and much later only in the 2009 the Misc. Case is filed for setting aside the judgment and decree of divorce. In order to represent the estate of deceased 2 husband the appellant claimed to have made Subodh Kumar @ Manoj Kumar as opposite party because it is her case that he is son of the deceased and the appellant. Learned counsel for the appellant has submitted that as per law laid down by the Hon’ble Supreme Court in the Case of Smt. Yallawwa V. Smt. Shantavva, AIR 1997 SC 35, even after death of husband who has obtained decree for divorce the aggrieved wife can maintain an appeal or an application for setting aside ex parte decree because such remedies are available to her under law. The only condition is that in such a proceeding the legal heirs of deceased husband should be brought on record as opponents or respondents. The impugned order disclosed that the learned Family Court has not rejected the application under Order IX Rule-13 C.P.C. on maintainability, rather the same has been considered on merits and rejected thereafter. The order shows that admittedly the appellant appeared in the suit on 15.09.1999 and filed her written statement on 06.04.1999 and she appeared till 2002 but thereafter she did not appear and did not cross-examine the witnesses of the 3 applicant nor led any evidence on her behalf leading to judgment dated 18.12.2004 allowing divorce. The learned Family Court has taken note of the fact that she was throughout represented by her lawyer. The name of her lawyer appears even in the copy of the judgment dated 18th December 2004, which has been annexed as Annexure-3 Series. On 21.07.2003 an application for interim maintenance was heard and she was allowed maintenance @ Rs.500/- per month. Only after 24.02.2003 she stopped attending to the proceeding of the suit. For her appearance again summons and registered summons were issued but she never appeared. Thereafter witnesses were examined but nobody appeared to cross-examine them. As noted in the impugned order, the records of the case disclose that the appellant never informed the Court regarding her absence and no reason was furnished as to why she did not appear. In such circumstances, the application under Order IX Rule-13 was rightly dismissed. Right of appeal or any right is subject to due diligence and limitation etc. as prescribed by relevant 4 statute. In the present case, not only the appellant did not take any action to get rid of the judgment allowing divorce during one year and ten months when her husband was alive but she slept over her claim for many years thereafter. The plea that further summons had not been shown to be validly served does not carry weight when she had already appeared in the suit and her lawyer’s name also appears in the judgment whereby prayer for divorce made by her husband was allowed. It is not a case where absence of a day or two only was required to be explained. Here the inaction was for long with absolutely no plausible explanation. In the facts and circumstances of the case, in our view the Court-below has rightly rejected the application under Order-IX, Rule-13 of C.P.C. We find no merit in this appeal. It is accordingly dismissed. Mkr. (Shiva Kirti Singh, J.) (C.M. Prasad, J.)