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PETITIONER:

SMT. YALLAWWA

Vs.

RESPONDENT:

SMT. SHANTAVVA

DATE OF JUDGMENT: 08/10/1996

BENCH:

N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majmudar, J:

The appellant had brought in challenge by special leave

under Article 136 of the Constitution, an order passed by

the learned Single Judge of the High Court of Karnataka

allowing the revision application moved by the respondent.

The High Court has set aside the ex parte decree for divorce

passed against the opponent by the learned Trial Judge.

In order to appreciate the grievance of the appellant,

who is alleged to be the ex-mother-in-law of the respondent,

a few facts leading to these proceedings are needed to be

noted ar the outset. The respondent was the married wife of

one Basappa. The appellant is the mother of said Basappa.

Respondent's husband, Basappa, filed a petition for

obtaining divorce against the respondent on the ground of

desertion. The said application was moved by said Basappa

being M.C. No.25 of 1989 in the court of the learned Civil

Judge, Gadag in Karnatake State. The said application was

moved by Basappa under Section 13(1) (i-b) of the Hindu

Marriage Act, 1955. The said divorce petition came to be

decreed ex parte against the respondent on 15.12.1989. It is

the case of the appellant, mother-in-law of the respondent,

that her son Basappa having obtained the decree of divorce

filed a suit being O.S No.42 of 1990 in the court of the

Munsif at Ron for permanent injunction against the

respondent contending that through she was no longer the

wife of Basappa in view of the decree of divorce yet she was

unnecessarily interfering with his possession and enjoyment

of the suit property. It is the further case of the

appellant that on 1.3.1990 the respondent was served with

the summons in O.S. No.42 of 1990 but remained absent. Said

Basappa, husband of the respondent, died on 26.5.1990. It is

thereafter that the respondent filed miscellaneous

application being Miscellaneous case No.102 of 1990 under

Order IX Rule 13 C.P.C. in the Court of Civil Judge at Gadag

for setting aside the ex parte divorce decree passed on

15.12.1989 It was the case of the respondent that she has

come to know about the ex parte divorce decree only on

31.3.1990; that she was not served with summons on the said

petition filed by Basappa. She also filed an application for

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condonation of delay in filing the Miscellaneous case for

setting aside the ex parte decree of divorce.

The learned Trial Judge held that the delay was not

properly explained by the respondent and that the respondent

was aware of the divorce proceedings much prior to the date

on which she is alleged to have come to know about the

divorce decree. The Trial Court, therefore, dismissed the

respondent's application under Order IX Rule 13 C.P.C. as

time barred by its order dated 27.7.1991. Respondent files a

revision petition being Revision Petition No.3683 of 1991

under Section 115 of the C.P.C. in the High Court of

Karnatake. The learned Single Judge of the High Court

allowed the said revision application on the ground that the

respondent being an illiterate lady would not have read the

notice published in the newspaper about the pendency of the

divorce proceedings taken out by the respondent's husband

Basappa against her and, therefore, this was a fit case for

condoning the delay in filing the miscellaneous application

under Order IX Rule 13 C.P.C. and also for setting aside the

ex parte decree. Accordingly the learned Single Judge set

aside the ex parte decree by the impugned order and also

ordered that the Hindu Marriage Petition be restored to the

file. The learned Trial Court was directed to take up the

matter and dispose it of in accordance with law as

expeditiously as possible. It is this order of the High

Court that has been made the subject matter of appeal by the

appellant who claims to be the legal representative of her

deceased son Basappa. It may be noted at this stage that the

miscellaneous application under Order IX Rule 13 as moved by

the respondent was also opposed by the present appellant,

mother of the deceased Basappa, as deceased Basappa was

already dead before the filing of application for setting

aside the ex parte decree in the Trial court and that is how

the appellant remained a party to the present proceedings

all through out upto this Court.

Learned counsel for the appellant vehemently submitted

that the High Court had patently erred in allowing the

revision application. His submission was that the respondent

was duly served by ways of substituted service under Order V

Rule 20. That inspite of the publication of notice of

pendency of the Hindu Marriage Petition in the newspaper

having circulation in the local area, the respondent had not

cared to content the proceedings and, therefore, the ex

parte decree was rightly passed by the Trial Court. It was

further contended that the respondent had knowledge of the

ex parte decree at least form the day on which she was

served with the summons in O.S. No.42 of 1990 on 1.3.1990

and still she filed miscellaneous application as late as on

3.7.1990 and she had made out no case for condoning the

delay in filing the said application and, therefore, it was

rightly rejected by the Trail Court and that the order has

been wrongly set aside by the High Court. In the

alternative, the learned counsel submitted that in any case

the respondents application under Order IX rule 13 C.P.C.

was not maintainable as deceased Basappa who had obtained

the divorce decree against the respondent was already dead

by the time the respondent filed the said application under

Order IX Rule 13 C.P.C. for setting aside the ex parte

decree. Hence the proceedings by way of said application had

stood abated as divorce proceedings represented a personal

cause of action both for the husband as well as the wife and

consequently the right to sue has not survived for

challenging the ex parte divorce decree after the death of

decree-holder husband. The application was, therefore, not

maintainable even on that ground. Learned counsel, however,

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frankly submitted that this contention was not canvassed

before the High Court but in his submission it goes to the

root of the matter and hence deserves consideration. Learned

counsel for the respondent-wife, on the other hand,

submitted that the revision application ought to have been

treated as an appeal from the order by the Trail Court as

appeal did lie against the order of the Trial Court refusing

to set aside the ex parte decree as per the provisions of

Order XLIII Rule 1(d) C.P.C. He submitted that of the said

proceeding was an appellate proceeding then the High Court

was justified in interfering with the order passed by the

learned Trial Judge for the obvious reason the respondent

was tried to be served in way if substituted service under

Order V Rule 20 C.P.C. That she being an illiterate lady had

not read and could not have read the newspaper publication

about the pendency of the Hindu Marriage Petition and

consequently she had no knowledge about the pendency of the

said petition. Even otherwise it was not shown that any case

was mode out by the plaintiff in that case for getting the

notice served by way of substituted service and no attempt

was made to serve the respondent in ordinary manner as

required by Order V Rule 12 as well as Order V Rules 15 and

17 C.P.C Consequently, the ex parte decree was a nullity

being passed against a party which was not served in

accordance with law and in case of such a null and void

decree, there was no question of limitation or in ay case

limitation ought to have been condoned in the interest of

justice by the Trail Court itself and as that was not done,

the High Court was justified in condoning the delay. It was

not true that the respondent knew about the ex parte decree

when she was served with notice on 1.3.1990. Even assuming

that it was so, the delay of few months in applying for

setting aside the ex parte decree deserved to be condoned in

the interest of justice and as the High Court has rightly

condoned the delay this Court under Article 136 of the

Constitution may not interfere with the said discretionary

order. So far as the alternative contention of concerned, it

was neither canvassed before the High Court nor before the

Trial Court, the said contention deserves to be rejected

even on merits. The said contention has no force for the

simple reason that once and ex parte decree is passed

against the wife on the ground of desertion apart from the

stigma which would be attached to the respondent by the said

decree, she would lose proprietary right in the husband's

property. In case of demise of the husband in the absence of

such decree of divorce she would be entitles to inherit the

deceased husband's property as his widow being heir of first

class along with the appellant, mother of the deceased.

Consequently, when an ex parte divorce decree has such

pernicious consequences against the wife, it could not be

said that proceedings for setting aside such an ex parte

decree would abate on the death of the original petitioner-

husband after he had obtained such an ex parte decree.

We have carefully considered the aforesaid rival

contentions. In order to appreciate the main grievance of

the appellant against the impugned order of the High Court,

it is necessary to note at the outset that the respondent

was seeking to get the order of the Trial Court dismissing

her application under Order IX Rule 13 C.PC. quashed by the

High Court. It is true that she moved a revision application

for that purpose but the order of the Trial Court refusing

to set aside the ex parte decree was clearly appealable

under Order XLIII Rule 1(d) C.P.C. which provides that an

appeal shall lie from the orders listed in the said

provision and in clause (d) is mentioned an order under Rule

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13 if Order IX rejecting an application (in a case open to

appeal) for an order to set aside a decree granting divorce

under Section 13(1)(i-b) whether ex parte or bipartite is a

decree which is appealable under Section 28 of the Hindu

Marriage Act, 1955. Consequently, the order of the Trial

Court refusing to set aside such an ex parte decree and

rejecting the application under Order IX Rule 13 C.P.C.

could have been validly made the subject-matter of an appeal

under order XLIII Rule 1(d). Therefore, the revision

application filed by the respondent before the High Court

should be treated in substance as one by way of

miscellaneous appeal. Once the High Court has appellate

jurisdiction over the impugned order of the Learned Trail

Judge, it is obvious that the High Court was fully competent

to interfere with the order by re-appreciation the facts of

the case. The learned Single Judge had doubt that respondent

being an illiterate lady living in a different town could

not have known through the newspaper that her husband head

filed a divorce petition against her and, therefore, she had

no knowledge about the divorce petition. Consequently, the

ex parte decree could be treated as one passed against the

party which was not served and which had no knowledge about

the said proceedings. The learned counsel for the respondent

was also justified in submitting that the Trail Court could

not have almost automatically granted the application for

substituted service without taking steps for serving the

respondent by ordinary procedure as laid down by order V

Rules 12, 15 and 17 C.P.C. It must be kept in view that

substituted service has to be restored as the last resort

when the defendant cannot be served in the ordinary was and

the court is satisfied that there is reason to believe that

the defendant is keeping out of the way for the purpose of

avoiding service, or that for any other reason the summons

cannot be served in the ordinary way. In the present case,

it appears that almost automatically the procedure of

substituted service was restored to. It is also clear from

the record of the case that respondent being an illiterate

lady would not have known about passing of the ex parte

decree earlier otherwise she could have moved for setting

aside the decree on any day prior to the day on which she

filed this application. Sufficient cause was therefore, made

out for condoning the delay in filing the application for

setting aside the ex parte decree. The High Court, in our

opinion, has rightly code to this conclusion which calls for

no interference under Article 136 of the Constitution, when

substantial justice had been done to the parties and

opportunity has been given to the wife to content the

divorce petition which had terminated against her without

giving any hearing to her.

That takes use to the consideration of the alternative

contention canvassed by the learned counsel for the

appellant. It is true that this contention was not canvassed

either before the Trial Court of before the High Court.

However, as this contention touches the maintainability of

the application , we have thought it fit to hear the learned

counsel on this point. So far as the contention of

maintainability of the application of the respondent-wife is

concerned, it must be kept in view that petition of divorce

was moved by the husband for getting his marriage with the

respondent dissolved by a decree of divorce on the ground

that the respondent deserted him fora continuous period of

not less that two years immediately preceding the

presentation of the petition. It is also to be kept in view

that such petition for divorce can be moved either by the

husband or the wife, as the case may be. To that extent it

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is certainly a personal case of action based on one or more

matrimonial misconducts alleged in the petition against the

erring spouse. Consequently, in such proceedings before and

decree comes to be passed of either of the spouse expires

pending the trial then the personal case of action would die

with the person. Such civil proceedings would not abate only

if right it sue survivors after the death of one or more of

the parties to the proceedings as laid down by Order XXII

Rule 1 C.P.C. However, if during the pendency of the

petition for divorce either of the spouses expires, the

cause of action being personal to both of them, the right to

sue would not survive. The next question is whether after

the decree of divorce of passed ex parte or bipartite

against the other spouse whether the right to sue would

survive for the spouse against whom such decree had been

passed by the Court and whether such a decree can be got set

aside by the surviving spouse either by filing an appeal or

by moving an application under Order IX Rule 13 C.P.C. for

getting it set aside if it is an ex parte decree. The answer

to the question will depend upon the legal effects of such a

decree of divorce passed by the Trial Court under Section

13(1) of the Hindu Marriage Act. It is obvious that so long

as the decree is not passed and proceedings are at any stage

prior to the decree, no rights or obligations of either

spouse get crystalized. The marital status of both the

spouses remains the in tact as it was prior to the filing of

the suit. But once a decree gets passed in such proceedings

the rights and obligations of the respective spouses who are

parties to such proceedings get crystalized under the orders

of the court. The marriage gets dissolved; the status of the

spouses gets changed and they become ex-husband and ex-wife.

As a result of such a decree of divorce the marriage tie is

snapped. Both of them become free to marry again as laid

down by Section 15 of the Hindu Marriage Act. Not only that

after such a decree when the spouses have ceased to be

husband and wife and become ex-husband and ex-wife,

proprietary right of both the spouses also get affected. As

per Section 8 of the Hindu Succession Act, if a male Hindu

dies intestate, his widow would be entitled to inherit his

property being a relative specified in class 1 of the

Schedule. Similarly, if the wife dies leaving behind her any

property, as per Section 15 of the Hindu Succession Act, the

property of the female Hindu shall devolve according to the

riles set out in Section 16 - firstly, upon the sons and

daughters (including the children of any pre-deceased son or

daughter) and the husband. Thus if a female Hindu dies

leaving behind her children and husband, the husband also

becomes entitled to inherit her property as first class

heir. Consequently, because of a divorce decree when the

spouses do not remain husband and wife, the mutual rights of

inheritance in each other`s property on the death of either

of them got extinguished. Therefore, apart from the divorce

decree destroying the erstwhile status of husband and wife,

it has a direct impact on the property rights of the

concerned spouses. Even that apart, as per Section 9 of the

Hindu Adoption and Maintenance Act, 1956, a Hindu widow is

entitled to be maintained out of her deceased husband's`s

estate and failing which by her father-in-law under

circumstances laid down by the said section. Even this right

will vanish after the decree of divorce, when her husband

dies after obtaining the said decree against her. It has

also to be kept in view that when a decree of divorce gets

passed against a spouse on the grounds of matrimonial

misconduct mentioned in Section 13(1) of the Hindu Marriage

Act, it attaches a social sigma on the concerned spouse.

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Such a spouse cannot be said to be left without any remedy

to get such finding vacated by filing an appeal or if it is

am ex parte decree to get it set aside by filing an

application under Order IX Rule 13 C.P.C. Cause of action

for getting such an adverse finding stigmatising the

concerned spouse, cannot be said to be purely a personal

cause of action against the departed spouse who was armed

with a decree in his or her favour based on such a finding.

When such legal affects flow from divorce decree, it cannot

be said with any emphasis that proceedings for setting aside

such a decree either by way of appeal or if it is an ex

parte decree by way of application under Order IX Rule 13

C.P.C. would also abate and such a right to sue for getting

the divorce decree set aside by the aggrieved party whose

status and proprietary rights get adversely affected by such

decree would not survive to such an aggrieved spouse, It is

also pertinent to note that as per Section 305 of the Indian

Succession Act, 1925 an executor or administrator has the

same power to sue in respect of all causes of action that

survive the deceased and may exercise the same power for

recovery of debts as the deceased had whin living, Save and

except the personal cause of action which dies withe the

deceased on the principal of "actio personal is moritur cum

persona," i.e. a personal cause of action dies with the

person, all the rest of causes of action which have impact

on proprietary rights and socio legal status of the parties

cannot br said to have died with such a person.

Learned counsel for the appellant submitted one

objection in connection with such proceedings. He submitted

that if such an action survives and the challenge to a

decree ex parte or bipartite for divorce is found to be

maintainable at the instance of the aggrieved spouse against

whom the decree has been passed then persons who are non-

spouses will have go be joined in the litigation and this

would go counter to Section 13 of the Hindu Marriage Act.

This difficulty is more imaginary than real. Once a divorce

decree is passed., the stage of launching any petition under

Section 13(1) dies bot survive. It is true that Section 13

of the Hindu Marriage Act lays sown that marriage whether

solemnized before or after the commencement of the Act may

be dissolved by a decree of divorce on the grounds mentioned

therein on a petition presented by either the husband or the

wife. Thus, initially when such petition is to be presented,

the person who presents such petition must be either wife or

husband and the other party would be the other spouse. But

once these proceedings are initiated by the concerned

aggrieved spouse, the trial then proceeds further. It is of

course true that pending such trial if either of the spouses

expires then, as seen earlier, the personal case of action

against the husband or the wife, as the case may be, dies

with the departing spouse. As no rights are still

crystalised by them against or in favour of either spouse,

no proprietary effect or any adverse effect on the status of

the parties would get generated by mere filing of such

petition and the status quo ante would continue to operate

during the trial of such petition. However the situation

gets changed once a decree of divorce follows in favour of

either of the spouses whether such decree id bipartite or ex

parte. Thereafter, as noted earlier, direct legal

consequences affecting the status of parties as well as

proprietary rights of either of them, as noted earlier,

would flow from such a decree. Under these circumstances, if

the aggrieved spouse who suffers from such legal effects of

the adverse decree against him or her is told off the gates

of the appellate proceedings or proceedings for setting

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aside such ex parte decree, the concerned spouse would

suffer serious legal damage and injury without getting any

opportunity to get such as decree set aside on legally

permissible grounds. Consequently, it may be held that once

the petition under Section 13 of the Hindu Marriage Act

results into any decree of divorce either ex parte on

bipartite then the concerned aggrieved spouse who suffers

from such pernicious legal effects can legitimately try to

get them reversed through the assistance of the court. In

such an exercise, all other legal heirs of deceased spouse

who are interested in getting such a decree maintained can

be joined as necessary parties. Section 13(1) of the Hindu

Marriage Act can obviously come on the way of such

proceedings being maintained against the legal heirs of the

decree-holder spouse. A mere look at the ground of Section

13(1) will show that a Hindu marriage can be dissolved on

the proof of matrimonial misconduct of very serious nature

as mentioned in the concerned grounds, namely, that the

offending spouse, after the solemnization of the marriage,

has voluntary sexual intercourse with any person other than

his or her spouse; or has treated the petitioner with

cruelty; or had deserted the petitioner for a continuous

period of not less than two years immediately preceding the

presentation of the petition; or has ceased to be a Hindu by

conversion to another religion; or has been incurably of

unsound mind, or has been suffering continuously or

intermittently from mental disorder; or has been suffering

from a virulent and incurable form of leprosy; or has been

suffering from venereal disease in a communicable form; or

has renounced the world by entering any religious order or

had not been heard of as being alive for a period of seven

years or more. These grounds to say the lease, to found

established, against the offending spouse would be serious

matrimonial misconducts or incapabilities and such a spouse

will go with a stigma for the rest of his or her life which

will have serious pernicious consequences not only social

but also legal, as we have noted earlier. It a decree of

divorce on these grounds whether ex parte or bipartite is

not permitted to be challenges by the aggrieved spouse, it

wold deprive the aggrieved spouse of an opportunity of

getting such grounds re-examined by the competent court. It

cannot, therefore be said that after a decree of divorce is

passed against a spouse whether ex parte or bipartite such

aggrieved spouse cannot prefer an appeal against such a

decree or cannot move for getting ex parte divorce decree

set aside under Order IX Rule 13 C.P.C. Such proceedings

would not abate only because the petitioner who has obtained

such decree dies after obtaining such a decree. The cause of

action in such a case would survive qua the estate of the

deceased spouse in the hands of his to her heirs or legal

representatives. Consequently in such appellate proceedings

or proceedings under Order IX Rule 13 C.P.C., other heirs of

the deceased spouse could be joined as opposite parties as

they would be interested in urging that the surviving spouse

against whom such decree is passed remains a divorcee and is

not treated to be a widow or widower of the deceased

original petitioner so that she or he may not share with

other heirs the property of deceased spouse. So far as the

other heirs of the deceased spouse are concerned, they would

certainly be interested in getting the decree of divorce

confirmed by the appellate court or by the Trial Court by

opposing application under Order IX Rule 13 C.P.C., if it is

an ex parte decree against the concerned spouse. It must,

therefore, be held that when a divorce decree is challenged

by the aggrieved spouse in proceedings whether by way of

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appeal or be way of application under Order Rule 13 C.P.C.

for setting aside the ex parte decree of divorce, right to

sue survives to the aggrieved surviving spouse if the other

spouse having obtained such decree dies after the decree and

before appeal is filed against the same by the aggrieved

spouse or application is made under Order IX Rule 13 by the

aggrieved spouse for getting such an ex parte decree of

divorce set aside. Similarly, the right to sue would also

survive even if the other spouse dies pending such appeal or

application under Order IX Rule 13 C.P.C. In either case

proceedings can be continued against the legal heirs of the

deceased spouse who may be interested in supporting the

decree of divorce passed against the aggrieved spouse.

It is now time for us to refer to the direction of

different High Courts on which strong reliance was placed by

either side. Learned counsel for the appellant in support of

alternative contention that proceedings under Order IX Rule

13 C.P.C. would abate on the death of the husband who had

obtained an ex parte decree against his wife relied upon a

decision of the Madras High Court in the case of Saraswati

Ammal vs. Lakshmi (A.I.R. 1989 Madras 216) wherein a learned

Single Judge no doubt had taken the view which is canvassed

by the learned counsel for the appellant. It has been

observed by the learned Judge that where on application by

husband alleging that his wife deserted him intentionally

and without any justification a decree of divorce was passed

ex parte and the husband died subsequently on passing of the

decree, the wife could not seek to set aside ex parte decree

thereafter by impleading the legal representatives of the

deceased husband. The proceedings for divorce initiated by

deceased husband was purely personal to him founded on the

subsistence of the marriage between him and his wife and on

death the proceedings at whatever stage they were stood

abated. When the husband alleged that wife deserted him

without any justification that complaint was purely a

personal complaint of husband against his wife with which

the husband's legal representatives had nothing whatever to

do. The very basis for the initiation of proceedings for

divorce was purely personal to husband and when he died,

there was no question of its survival in the estate of

deceased husband either for his benefit or for the benefit

of wife. The deceased husband was not seeking the

enforcement of any right, which on his death, would vest in

his heir at law or the representative of his estate. It is

difficult to appreciate this line of reasoning. It is true

that such decree is passed in a petition moved by the

husband on the ground of desertion by his wife. It is also

true that these proceedings remain purely based on personal

cause of action till they reach finality at the trial, but

once a decree of divorce is passed certain legal effects

regarding the status of parties and even proprietary effects

flowing from such decree as noted earlier would arise as a

direct consequence of such a decree. That will have a

straight impact on the estate of the deceased husband or

wife, as the case may be. Unfortunately learned Judge was

not apprised of these legal pernicious effects flowing from

ex parte decree of divorce against the aggrieved spouse.

That had led the learned Judge to assume that there were no

legal consequences of ex parte decree on the other spouse.

It is also not correct to observe that legal representatives

of the husband have nothing to do with these proceedings. As

we have seen earlier, the proprietary right of other legal

heirs of the deceased husband to get full share in the

deceased husband's property would get directly affected and

curtailed of such decree is set aside. On the other hand,

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such right would get enlarged if such a decree is sustained

in appeal or is maintained under Order IX Rule 13 C.P.C. The

aforesaid decision of the learned Single Judge of the Madras

High Court, therefore, must be held to be erroneous. In Mst.

Bhan Kaur vs. Isher Singh & Ors. (A.I.R. 1959 Punjab 553) a

view similar to that of the learned Single Judge of the

Madras High Court had been taken which in our view also does

not lay down the correct law. On the other hand, we find

that a learned Single Judge of the High Court of Bombay in

the case of Kamalabai vs. Ramdas Manga Ingale (A.I.R. 1981

Bombay 187) has correctly held that where an appeal was

filed by wife against the decree of divorce and the

respondent died during the pendency of the appeal, the

appeal cannot be treated as having abated on the death of

the respondent. It was further observed that where the

position is not free from doubt equitable consideration must

prevail and bearing in mind the nature of the conclusion,

the far-reaching effect of the findings of the Court, both

on personal status and property rights, it is desirable that

the party aggrieved by the decree of the trial court must

have the opportunity to have the findings reversed and this

opportunity must be assured irrespective of the death of the

respondent. For coming to the aforesaid conclusion, the

learned Judge had relied upon the earlier decision of the

Division Bench of the High Court in the case of Suhas

Manohar Panda vs. Manohar Shamrao Pande (A.I.R. 1971 Bombay

183) and the decision of the Division Bench of the Andhra

Pradesh High Court in the case of Verma Sunanda vs. Vempa

Venkata Subbarao (A.I.R. 1957 Andhra Pradesh 424). It must,

therefore, be held that after a decree of divorce is

obtained by the petitioning husband against his wife she has

right to file an appeal and such appeal does not abate on

account of the death of the respondent husband whether such

death takes place prior to the filing of appeal or pending

the appeal. Similarly, if an ex parte decree of divorce is

obtained against the wife and thereafter if the husband

dies, the aggrieved wife can maintain an application under

Order IX Rule 13 C.P.C., even though the husband might have

died prior to the moving of that application or during the

pendency of such application. In all such cases other legal

heirs of the deceased husband can be brought on record as

opponents or respondents in such proceedings by the

aggrieved spouse who wants such decree to be set aside and

when the other heirs of the deceased husband would naturally

be interested in getting such decree confirm either in

appeal or under Order IX Rule 13 C.P.C. The second

alternative contention as canvassed by the learned counsel

for the appellant, therefore stands rejected.

Before parting with the discussion on this point, we

may mention that in a recent decision of two Member Bench of

this Court consisting of B.P.Jeevan Reddy and K.S.

Paripooran JJ. in C.A.Nos. 12664-65/96 dt.22.9.96 the

decision of the learned Single Judge of the Madras High

Court in Saraswathi Ammal vs. Lakshmi (supra) has been

reversed and the learned Judges have taken the same view

which we are inclined to take in the facts and circumstances

of the present case.

Now remains the question as to whether the proceedings

for divorce as restored by the High Court by its impugned

order and required to be proceeded further or the curtain

must be dropped on the said proceedings.

As the ex parte decree is found to be rightly set aside by

the High Court, the marriage petition would automatically

stand restored on the file of the learned Trial Judge at the

stage prior to that at which they stood when the proceedings

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got intercepted by the ex parte decree. Once that happens it

becomes obvious that the original petitioner seeking decree

of divorce against the wife being no longer available to

pursue the proceedings now, the proceedings will certainly

assume the character of a personal cause of action for the

deceased husband and there being no decree culminating into

any crystalized rights and obligations of either spouse, the

said proceedings would obviously stand abated on the ground

that right to sue would not survive for the other heirs of

the deceased husband to get any decree of divorce against

the wife as the marriage tie has already stood dissolved by

the death of the husband. No action, therefore, survives for

the court to snap such a non-existing tie, otherwise it

would be like trying to slay the slain. At this stage there

remains no marriage to be dissolved by any decree of

divorce. Consequently, now the ex parte decree is set aside,

no useful purpose will be served by directing the Trial

Court to proceed with the Hindu marriage petition by

restoring it to its file. The Hindu Marriage Petition No. 25

of 1989 moved by Shri Basappa, the husband of the

respondent, on the file of the Court of Civil Judge, Gadag

will be treated to have abated and shall stand disposed of

as infructuous. The appeal is disposed of accordingly. In

the facts and circumstances of the case, there will be no

order as to costs.