ORDER
R.S. Madan, J.
1. The controversy raised in this revision petition is “Whether the substituted service effected upon the respondent-appellant herein by way of proclamation is due service in the eye of law or not”?
The answer to the aforesaid controversy can be judged from the facts of the present appeal.
2. Vijay Kumar, petitioner-respondent had filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by way of decree of divorce, against the present appellant on the ground of cruelty. It was the case of the petitioner-respondent that after the solemnization of the marriage on 26-1-1992 at Jalandhar, they shifted to Delhi. Immediately after the marriage, the petitioner-respondent came to know that the respondent-appellant had got installed a pace-maker in her heart because she was suffering from chronic heart disease and was thus unable to discharge her matrimonial obligations. It was alleged by the petitioner-respondent that after coming to know of the chronic disease from which the respondent-appellant was suffering, the relations between them became strained because by not disclosing this fact before the marriage, the respondent-appellant and her parents have played a fraud with the petitioner-respondent. It is alleged that in the year 1996, the petitioner and the respondent-appellant shifted to Ludhiana and permanently settled there. At Ludhiana, the respondent in a state of ill-mental health tried to commit suicide and she remained admitted in the hospital for two days. In the month of October, 1997 the respondent left the house of the petitioner with an intention to break the matrimonial ties and despite several efforts made by the petitioner-respondent she did not return to the matrimonial fold. It is alleged that out of the wedlock two sons were born, who are now residing with the respondent-appellant. Hence, the present petition was filed by the petitioner-respondent for dissolution of marriage under Section 13 of the Hindu Marriage Act.
3. After the filing of the petition, the respondent was served through publication. Despite service through publication, she did not appear and ultimately she was proceeded against ex parte on November 23, 2000. Thereafter, the ex parte proceedings were initiated against the present appellant and ex parte decree of divorce was granted by the Additional District Judge, Ludhiana vide order dated December 12, 2000 in favour of the petitioner-respondent.
4. The appellant on learning about the grant of ex parte decree of divorce in favour of the petitioner-respondent, she moved an application under Order 9, Rule 13 read with Section 151 of the Code of Civil Procedure, on April 15, 2002 for setting aside the ex parte decree dated December 12, 2000 passed by the learned Additional District Judge, Ludhiana. In her application, the respondent-appellant claimed that the petitioner-respondent in the petition has intentionally, deliberately and in order to play a fraud upon the respondent-appellant has given the wrong postal address i.e. House No. 1508 Section 7, Karnal in order to get ex parte decree. It is further alleged that the appellant was not aware of any divorce proceedings till the respondent appeared in the proceedings under Section 125, Cr.P.C. pending at Mansa. It is alleged that from the reply filed by the petitioner-respondent on 7-3-2002, she came to know that the petitioner-respondent has fraudulently obtained the ex parte decree of divorce from the Court of Additional District Judge, Ludhiana, vide order dated December 12, 2000. It wag thereafter, that she filed the applicatiojf for setting aside the ex parte decree.
5. Upon notice, the application was resisted by the petitioner-respondent. Besides taking other objections, a preliminary objection was raised that the absence of the applicant-respondent from the Court was wilful and that the application moved for setting aside the ex parte decree dated December 12, 2000 is hopelessly time-barred and that the petitioner-respondent has already performed his second marriage with Rosy Gupta in March 2001 and out of this wedjock a baby has born.
6. After perusing the pleadings of the parties, the learned trial Court framed the following issues:
1) Whether there are sufficient grounds to set aside the ex parte decree dated 12-12-2000? OPA.
2) Relief.
7. After evaluating the evidence brought on the record, the learned Additional District Judge, Ludhiana dismissed the application of the petitioner for setting aside the ex parte judgment and decree, vide order dated October 13, 2004. It is this order, which has been challenged before this Court by way of filing the present first appeal against the order.
8. It is a case where the appellant was proceeded against ex parte on the strength of publication in the Newspaper by way oft substituted service. Under the Limitation? Act, Part I attached with the Schedule, the I period of limitation for moving applications I in the specified cases, under Article 123, the period of limitation given is thirty days after setting aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte. It is specifically mentioned that the date of decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree, within the period of thirty days, the application can be moved, as per Article 123 of the Limitation Act, which is reproduced as under:
123. To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte–Thirty days.
Time from which period begins to run–The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.
Explanation: For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.
9. Admittedly the application for setting aside the ex parte judgment and decree was filed on 15-4-2002. From the Zimni order dated 7-3-2002 it is clear that the reply to the application under Section 125, Cr.P.C. was filed in the Court on 7-3-2002 wherein the factum of ex parte decree dated 12-12-2000 was disclosed. Thus it is clear that the application for setting aside the ex parte order dated 12-12-2000 was filed within thirty days of obtaining the knowledge of the passing of the decree.
10. Thus, from the perusal of the order dated October 13, 2004, it is clear that the counsel for the parties did not bring this article to the notice of the Additional District Judge, Ludhiana, who was dealing with the application for setting aside the ex parte judgment and decree. The explanation given under Article 123 clearly depicts that the substituted service under Order 5, Rule 20 of the Code shall not be deemed to be the due service. If this interpretation to the Explanation of Article 123 is taken into consideration, it would mean that the present appellant was not duly served. Therefore, the ex parte judgment and decree passed on the basis thereof is in violation of the explanation given under Article 123 ibid and the same is liable to be set aside.
11. As a sequel to my above discussion, the ex parte judgment and decree passed by the learned Additional District Judge, Ludhiana, vide order dated December 12, 2000 is not sustainable in the eye of law. Accordingly, the appeal is accepted and the ex parte judgment and decree passed by the Additional District Judge, Ludhiana as well as the order dated October 13, 2004, vide which the application for setting aside the ex parte decree was dismissed, are set aside.
12. As a result the case is remitted to the Court of Additional District Judge, Ludhiana who shall proceed with the case in accordance with law and shall dispose of the same on merit, after affording due opportunities to the parties concerned.
13. The parties through their counsel are directed to appear before the learned Additional District Judge, Ludhiana on October 19, 2007 who shall restore the original petition under Section 13 of the Hindu Marriage Act to its original number and would try to dispose of the same expeditiously, preferably within a period of one year from the date of receipt of a certified copy of this order.