ORDER
R.C. Lahoti, J.
1. The wife appellant has come up in appeal aggrieved by an order dated 4-11-1988 passed by the District Judge, Morena, rejecting her application Under Order 9, Rule 13, Civil Procedure Code seeking setting aside of an ex parte decree of divorce dated 19-1-1988 passed in C.O.S. No. 17- A/87 by the District Judge, Morena in favour of the husband/respondent.
2. The application Under Order 9, Rule 13, Civil Procedure Code was filed on 28-3-1988 alleging that process server had come to her on 3-10-1987 but she told him to come on the following day because she wanted to consult her husband before accepting the summons. At that time the couple was living together. In the evening when the husband returned from the office, he told the wife that the proceedings were initiated by him in a fit of anger and the appellant need not bother nor attend the Court because he would have the proceedings terminated which would otherwise gathered the knowledge of the ex parte decree on 17-3-1988 when the husband/respondent told her that the marriage between them had been dissolved by a decree of divorce.
3. The husband/respondent contested the prayer by denying all the averments made in the application.
4. The wife/appellant examined herself and a witness Banshidhar in support of the application. The husband, one Shyamnarayan and Kailash Yadav, the process server, appeared in the witness-box in rebuttal of the appellant’s evidence. The trial Court found tha the averments made in the application were not substantiated and hence the application was liable to be dismissed.
5. The, application Under Order 9, Rule 13, Civil Procedure Code having been rejected on 4-11-1988, certified copy of the order was applied for on 16-11-1988 and delivered on 24-11-1988. On 15-12-1988 this appeal was filed within the prescribed period of limitation. The memo of appeal is accompanied by an application for staying the decree of divorce. This Court was not inclined to grant an ex parte order and imply directed a notice to be issued to the respondent. On 17-4-1989 the respondent came out with a reply that he was served in the appeal on 2-3-1989 but he had remarried on 18-1-1989 and hence the appeal had become infructuous.
6. At the hearing the learned counsel for the appellant submitted that the appellant, corroborated by her witness Banshidhar, had made out a case for setting aside the ex parte decree and the Court consistently with the well settled principles applicable to such cases should have taken a liberal view of the things specially when the marital status of a lady was in jeopardy and should have set aside the ex parte decree. She has more vigorously banked upon an additional fact and raised a contention, which has been unanswerable, by proceeding certified copies of order sheets dated 5-10-1987 and 20-10-1987 from the record of C.O.S. No. 17-A/87. Learned counsel submits that the record reveals that on 5-110-1987 the presiding Judge of the Court was on leave; the Court reader adjourned the case to 20-10-1987 for orders; so the date 5-10-1987 could not be deemed to be a date of hearing while she had no notice of the date 20-10-1987 on which day the Court proceeded ex parte. Thus the direction to proceed ex parte and the consequent ex-parte proceedings are both illegal and liable to be set aside. This contention being purely legal and going to the root of the matter has been allowed to be raised and the learned counsel for parties heard.
7. The contention finds implicit support from a decision of this Court in Mohanlal Brijlal v. Manga, 1986 CCLJ Short Note 39. This Court held, in identical facts, that the next date having been appointed for further orders by the Court reader, in the absence of the presiding officer, could not be deemed to be a date fixed for hearing and the party’s absence on that date did not give jurisdiction to proceed ex parte.
8. Faced with the situation the learned counsel for the respondent chose to fall back on plea of limitation submitting that the application Under Order 9, Rule 13, Limitation Act, the same should have been rejected Under Section 3 of the Limitation Act. Such an objection was not taken in the reply before the Court below. Moreover, the facts entitling the appellant to the benefit of Section 5 were all pleaded in the application Under Order 9, Rule 13, Civil Procedure Code itself, hence the relief to the appellant was rightly not denied merely by because a separate application Under Section 5 of the Limitation Act was not filed.
9. The learned counsel for the respondent has forcefully submitted that Section 15 of the Hindu Marriage Act has a limited field to operate where the decree is one of divorce and the appeal as against the decree is filed Under Section 28 of the Hindu Marriage Act. Further, the learned counsel submits, that Section 15 does not apply to the proceedings for setting aside an ex parte decree, much less to an appeal against the order rejecting the application. He has relied on Mohan Murari v. Kusumkumari, 1965 MPLJ 321, AIR 1965 MP 194, a Division Bench decision of this Court. Mohan Murari’s case has lost its authority in view of the law laid down by the Apex Court in Smt. Lata Kamat v. Vilas, AIR 1989 SC 1477. Their Lordships clearly observed in para 9 that the view taken in Mohan Murari’s case (supra) so also the Punjab view in Promod Sharma v. Radha, AIR 1976 P. and H. 355, and the Allahabad view in Jamboo Prasad Jain v. Smt. Malti Prabha, AIR 1979 All. 260 are incorrect.
10. In Rajeshwari v. Jugul Kishore Gupta, 1990 MPLJ 103, AIR 1990 MP 217 relying on Tehinder Kaur v. Gurmit Singh, AIR 1988 SC 839 and Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581 this Court vide para 15 held –
“In the present case, the application to set aside ex parte decree was rejected on 5-4-1984, while the respondent remarried on 20-4-1984 even before the limitation for filing an appeal against the order of rejection had expired. Relying on the law laid down by the Supreme Court, by analogy, it must be held that the respondent, without waiting for the period of appeal to expire and without verifying whether the appellant with intent to file appeal had applied for a certified copy of the order could not nullify her rights by remarrying hardly within 15 days of the order. Therefore, the appeal cannot be dismissed as infructuous by the alleged second marriage.”
Vide para 14, this Court has followed the Madras and Jammu and Kashmir views. In Krishanlal v. Mst. Krishna, AIR 1971 J. and K. 31, the Madras view in Vathsla v. Manoharan, AIR 1969 Mad. 405 has been relied on. Both the High Courts had dissented from the Madhya Pradesh view in Mohan Murari’ case, later overruled in Smt. Lata Kamat v. Vilas, AIR 1989 SC 1477. The Jammu and Kashmir and Madras High Courts had relied on the law laid down by the Apex Court in Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581, which was unfortunately not placed before the Division Bench of this Court in Mohan Murari’s case.
11. In Chandra Mohani’s case (supra) their Lordships observed :
“It is true that Section 15 does not in terms apply to a case of an application for special leave to this Court. Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court’s decree and thus take away from the losing party the chance of presenting an application for special leave. Even though Section 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Court’s decree, for no appeal as of right lies from the decree of the High Court to this Court in this matter, we still think that it was for the first respondent to make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Court’s decree deprive the appellant of the chance to present a special leave petition to this Court. If a person does so, he takes a risk and cannot ask this Court to revoke the special leave on this ground.”
11-A. In the opinion of this Court in a matrimonial cause one of the parties cannot by entering into marriage defeat the other party’s right to have the matter resolved by the Court by pursuing such remedy, as is available under the law, till its end. It was obligatory on the part of the respondent to have ascertained before entering into the second marriage if the wife had taken any steps for filing an appeal against the order rejecting her application Under Order 9, Rule 13, Civil Procedure Code and if he has not done so, he has acted at his own risk. He cannot ask this Court for denying any relief to which the appelant would otherwise be entitled on merits.
12. Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562 and Urmilabai v. Narayan, 1983 MPWN 306, relied on by the learned counsel for the respondent proceed on their own facts and have no application to the present case.
13. It follows from the above discussion that the District Judge was not justified in proceeding ex parte against the appellant in the original suit and the prayer for setting aside the ex parte decree could not have been refused.
14. Consequently, the appeal is allowed. The impugned order dated 4-11-1988 rejecting the appellant’s application Under Order 9, Rule 13, Civil Procedure Code is set aside. The ex parte decree in C.O.S. No. 17-A/87 as also the ex parte proceedings all set aside. The District Judge, Morena shall hear and dispose of the C.O.S. No. 17-A/87 by relegating the parties back to the commencement of proceedings held on 20-12-1987, affording the appellant an opportunity of participating thereat. Both the parties through their counsel are directed to appeal before the District Judge, Morena, on 3-12-1990 to take a date of hearing in C. O. S. No. 17-A/87. A copy of the order shall be communicated to the District Judge, Morena.