Patna High Court
Reena RaiversusDivyendra Kumar
- Decided
- Disposal
- DISPOSED
Holding
The appellant must first avail the remedy under Order IX Rule 13 of the CPC before filing a miscellaneous appeal, and the ex‑parte order and decree are set aside.
Summary
The appellant, Reena Rai, filed a miscellaneous appeal seeking to set aside an ex‑parte order dated 25‑05‑2022 and the subsequent decree dated 07‑06‑2022 in a matrimonial divorce case. The ground asserted was that notice of the proceedings had never been served. The High Court examined whether the appellant had first exhausted the specific remedial provision under Order IX Rule 13 of the Code of Civil Procedure before approaching the court via a miscellaneous appeal. The Court held that the appellant must first avail that remedy and therefore remanded the matter, setting aside the ex‑parte order and decree. The appeal was disposed of, granting the appellant liberty to file the appropriate application before the trial court, with the limitation period to be condoned. The decision emphasizes procedural compliance before filing higher‑court appeals in family law matters.
Issues considered
- Whether the appellant was required to first invoke the remedy under Order IX Rule 13 of the Code of Civil Procedure before filing a miscellaneous appeal.
- Whether the limitation period for filing an application under Order IX Rule 13 can be condoned.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order IX Rule 13
Subjects
- divorce
- ex‑parte order
- miscellaneous appeal
- Order IX Rule 13
- limitation
- condonation
- family court
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.343 of 2023
======================================================
Reena Rai Wife of Divyendra Kumar, D/o- Arbind Kumar Suman, A resident
of Kirapur Rajaram, P.S. Bhagwanpur, District- Vaishali, at present residing at
RZ3284/37 Tugalkabad extension, New Delhi- 110019, Near SShahi Public
School, Gali No.37.
... ... Appellant/s
Versus
Divyendra Kumar Son of Dwendra Rai, A resident of Mohalla- Nakhas
Mithakuan, P.S.-Hajipur Town, District- Vaishali.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Harish Kumar, Advocate
For the Respondent/s : Mr.Vasant Vikas, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE DR. ANSHUMAN)
9 19-02-2026 Learned counsel for the appellant and learned
counsel for the respondent along with their clients are present.
2. After detailed discussion between the parties, they
cannot reached on one time settlement.
3. It transpires to this Court that the memo of appeal
has been filed for setting aside the Ex-parte order dated
25.05.2022 as well as decree dated 07.06.2022 in Matrimonial
Divorce Case No.135 of 2020 passed by Principal Judge,
Family Court, Vaishali at Hajipur. An I.A. No.01 of 2023 has
also been filed for condonation of delay in filing the appeal.
4. It further transpires to this Court that the ground
taken by the appellant is that notice has never been served.
Upon specific query of the Court that whether remedy under
Order 9 Rule XIII of the Code of Civil Procedure has been
Patna High Court MA No.343 of 2023(9) dt.19-02-2026
2/2
exhausted or not?
5. In reply, counsel for the appellant submits that the
said remedy has not been exhausted by the appellant till date.
6. We are of the considered opinion that prior to
preferring miscellaneous appeal, the appellant should have to
avail remedy under Order IX Rule 13 of the Code of Civil
Procedure. Therefore, this matter is remanded back and the Ex-
parte order dated 25.05.2022 as well as decree dated 07.06.2022
in Matrimonial Divorce Case No.135 of 2020 passed by
Principal Judge, Family Court, Vaishali at Hajipur are set aside.
7. Accordingly, the present miscellaneous appeal is
hereby disposed of, granting liberty to the appellant to file a
miscellaneous appeal before the Trial Court itself and exhaust
the said remedy in accordance with law.
8. We are conscious that any such application under
Order IX Rule 13 of the C.P.C. is barred by limitation. As the
limitation period is only 30 days, but at the time of passing
order, we are hereby directing to the Trial Court to entertain
such application and limitation, if any, is hereby directed to be
condoned.
(Bibek Chaudhuri, J)
(Dr. Anshuman, J)
Prakashmani/-
U
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