*HON'BLE SRI JUSTICE G. BHAVANI PRASAD +Civil Revision Petition No.5488 of 2007 % 08/07/2010 # Eluru Sreenivasa Rao ..... PETITIONER Vs. $ Eluru Sri Lakshmi Padmavathi @ Padmavathi .....RESPONDENT ! COUNSEL FOR THE PETITIONER: Sri G. Dharma Rao ^ COUNSEL FOR THE RESPONDENT: Sri Ch. Ravindra Babu < Gist : Ø Head Note: ? CITATIONS: 1. 2004 (3) ALD 690 2. AIR 1991 Kerala 362 3. AIR 1985 GAUHATI 44 4. AIR 1978 (P & H) 150 ORDER: The order in I.A. No.1025 of 2006 in H.M.O.P. No.156 of 2004 on the file of the Additional Senior Civil Judge, Tenali, dated 07-08-2007 allowing the petition to set aside the ex parte decree on payment of costs with reference to the provisions of Order IX Rule 13 and Section 151 of the Code of Civil Procedure, is the subject of this revision on the ground that Order IX of the Code of Civil Procedure is not applicable to the proceedings under the Hindu Marriage Act in the light of Section 28 of the said Act providing for an appeal. Sri I. Ravindra Babu, learned counsel representing Sri G. Dharma Rao, learned counsel for the petitioner and Sri S. Ravi Kumar, learned counsel representing Sri Ch. Ravindra Babu, learned counsel for the respondent are heard. The point for consideration is whether the ex parte decree under the Hindu Marriage Act cannot be set aside with reference to Order IX Rule 13 of the Code of Civil Procedure ? Point: It should be first noted that the impugned order in I.A. No.1025 of 2006 is a sequel to the order in I.A. No.403 of 2005 in H.M.O.P. No.156 of 2004, dated 20-09-2006, in which a specific objection was taken about the inapplicability of Section 5 of the Limitation Act and Order IX of the Code of Civil Procedure to the proceedings under the Hindu Marriage Act and the objection was overruled by the trial Court with reference to the decision in Miryala Kavitha @ Yadamma v. Miryala Krishnaiah[1] and C. Sarala v. K. Nalinakshan[2]. That order of the trial Court obviously remained unchallenged and had become final and in the said lis between the same parties, the same objection could not have been raised at a subsequent stage against that interlocutory order in the absence of any change of circumstances or any intervention of any new facts. Even otherwise, the reliance placed by the revision petitioner on the decision in Anjan Kumar Kataki v. Smt. Minakshi Sarma[3] cannot be preferred in the light of the two decisions above referred to. The reasoning of the Gauhati High Court that the mandatory provisions of Section 28(1) of the Hindu Marriage Act bar an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree, does not appear to be justified by the plain and unambiguous language of the provisions of the Hindu Marriage Act. Making all decrees in any proceedings under the Hindu Marriage Act appealable as decrees of the Court under the original civil jurisdiction under Sub- section (1) of Section 28 of the Hindu Marriage Act, cannot restrict or abrogate the specific provision in Section 21 regulating all proceedings under the Hindu Marriage Act as far as may be, by the Code of Civil Procedure, 1908. If Section 28 provides for appeals from decrees and orders and if regulation by the Code of Civil Procedure, 1908, of the proceedings under the Hindu Marriage Act is made subject to the other provisions of the Hindu Marriage Act by Section 21, a reading together of the two provisions can only mean that the provisions of the Code of Civil Procedure or the rules made thereunder in respect of the appeals from decrees and orders can have no application to the extent of such appeals from decrees and orders provided by Section 28 and cannot be artificially extended to further mean that there can be no other remedy against the decrees made in any proceedings under the Hindu Marriage Act, if such a remedy is provided by other provisions of the Code of Civil Procedure otherwise than by way of an appeal. Therefore, while respectfully disagreeing with the view expressed in the above cited decision, it may be noted that in C. Sarala v. K. Nalinakshan (2 supra), the Division Bench also made it clear that the words ‘as far as may be’ employed in Section 21 of the Hindu Marriage Act can only mean that the provisions of the Code of Civil Procedure, which, by reason of their nature are incapable of being applied to the proceedings under the Hindu Marriage Act, may not be applicable. The Division Bench also made it clear that the other provisions of the Code of Civil Procedure as are inconsistent with the provisions of the Hindu Marriage Act, also may not be applicable, but there can be no hesitation in agreeing with the decision in Smt. Manjit Kaur v. Gurdial Singh[4], wherein Order IX Rule 9 of the Code of Civil Procedure was held applicable to the proceedings under the Hindu Marriage Act. A learned Judge of this Court in Miryala Kavitha @ Yadamma v. Miryala Krishnaiah (1 supra) ordered an application under Order IX Rule 13 of the Code of Civil Procedure after condoning the delay in filing the same, obviously in recognition of the maintainability of such applications in proceedings under the Hindu Marriage Act. In view of the order condoning the delay in filing a petition to set aside the ex parte decree having become final and in view of the consideration of the request for setting aside the ex parte decree being governed by the same facts and circumstances, there is nothing unreasonable or illegal in the impugned order, which cannot be interfered with in exercise of the restricted revisional jurisdiction. Accordingly, the civil revision petition is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 08-07-2010 Note: L.R. copies to be marked (Bo) Svv [1] 2004 (3) ALD 690 [2] AIR 1991 Kerala 362 [3] AIR 1985 GAUHATI 44 [4] AIR 1978 (P & H) 150