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Issues Involved:
1. Whether the Explanation to Order 9, Rule 13 of the Code of Civil Procedure bars the maintainability of an application for setting aside an ex-parte decree when an appeal against the decree has been dismissed as barred by limitation. 2. Whether sufficient cause was shown for condonation of delay in filing the application under Order 9, Rule 13 of the Code of Civil Procedure. 3. Whether sufficient cause was shown for the non-appearance of the respondent at the hearing of the petition for divorce. Issue-Wise Detailed Analysis: 1. Bar Under Explanation to Order 9, Rule 13: The primary issue was whether the Explanation to Order 9, Rule 13 of the Code of Civil Procedure (CPC) bars the maintainability of an application for setting aside an ex-parte decree when an appeal against the decree has been dismissed as barred by limitation. The Explanation to Order 9, Rule 13 was introduced by the Code of Civil Procedure (Amendment) Act, 1976, effective from February 1, 1977. Prior to this amendment, a defendant could apply to the trial court under Rule 13 of Order 9 to set aside an ex-parte decree and could also appeal under Section 96 against the decree. The Explanation now specifies that no application for setting aside an ex-parte decree shall lie if the defendant has filed an appeal and the appeal has been disposed of on any ground other than the ground of withdrawal by the appellant. In the present case, the appeal was dismissed as barred by limitation. The Supreme Court held that an appeal presented out of time is still an appeal, and an order dismissing it as time-barred is one passed in appeal. Consequently, the dismissal of the appeal as time-barred constitutes a disposal of the appeal, thereby attracting the bar under the Explanation to Order 9, Rule 13. Therefore, the application for setting aside the ex-parte decree was held to be incompetent and not maintainable. 2. Condonation of Delay in Filing Application: The second issue was whether sufficient cause was shown for condonation of delay in filing the application under Order 9, Rule 13. The High Court had found that sufficient cause was made out by the husband for condonation of delay in presenting the application under Order 9, Rule 13 beyond the prescribed time. However, since the Supreme Court held that the application itself was barred under the Explanation to Order 9, Rule 13, it did not delve into the merits of whether sufficient cause for condonation of delay was shown. 3. Non-Appearance at the Hearing: The third issue was whether sufficient cause was shown for the non-appearance of the respondent at the hearing of the petition for divorce. The High Court had concluded that sufficient cause was shown by the husband for his non-appearance at the hearing when the ex-parte decree for divorce was passed. However, similar to the issue of condonation of delay, the Supreme Court did not address this issue in detail because the application for setting aside the ex-parte decree was found to be barred under the Explanation to Order 9, Rule 13. Conclusion: The Supreme Court allowed the appeal, set aside the judgment and order passed by the High Court, and restored the ex-parte decree passed in favor of the appellant. The application for setting aside the ex-parte decree was held to be incompetent and not maintainable due to the bar created by the Explanation to Order 9, Rule 13 of the CPC. There was no order as to costs.
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