Sarita Kumari alias Jyoti KumariversusGovind Kumar

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                     Miscellaneous Appeal No.510 of 2019
                  ======================================================
                  Sarita Kumari alias Jyoti Kumari

                                                                          ... ... Appellant/s
                                                 Versus
                  Govind Kumar

                                                            ... ... Respondent/s
                  ======================================================
                  Appearance :
                  For the Appellant/s    :   Mr. Madan Prasad Singh No.2, Adv.
                  For the Respondent/s   :   Mr. Birendra Kumar, Adv.
                                             Mr. Kumud Kishore, Adv.
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
                          and
                          HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
                                        ORAL ORDER

                  (Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)

16   07-04-2026                                I.A. No. 03 of 2025

                                 Heard the parties.

                                2. Notice has been served upon the respondent.

                                3. Though Mr. Birendra Kumar learned

                    advocate alongwith Mr. Kumud Kishore entered

                    appearance on behalf of the respondent, no step has

                    been taken by them to represent the respondent when

                    the matter was called up for hearing.

                                4. It appears from the record, that the instant

                    appeal was inadvertently admitted with the order dated

                    01.07.2025 by learned Co-ordinate Bench overlooking
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          the fact that the appeal is barred by limitation and an

          application for condonation of delay bearing I.A. No. 03

          of 2025 is lying with the record.

                       5. Therefore, we propose to take up the

          application filed by the appellant for condonation of

          delay.

                       6. It is submitted on behalf of the appellant that

          the judgment and decree of Divorce cum Matrimonial

          Case (Divorce Case No. 207 of 2017) was disposed of

          by learned Principle Judge, Family Court, Nawada on

          14.02.2019 ex-parte.

                       7. The existence of ex-parte decree came to the

          knowledge of the appellant only on 29.05.2019 when

          she appeared before the learned Additional Sessions

          Judge 3rd, Barh, to contest the anticipatory bail petition

          filed by the opposite party. Subsequently, he obtained

          the certified copy of the impugned judgment and filed

          the appeal on 18.07.2019, thus there was delay of 5

          months and 4 days in filing the appeal because the

          appellant did not have any knowledge about the above
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          numbered matrimonial case.

                       8. This Court has heard the learned advocate on

          behalf of the appellant. It is not in dispute that the

          decree for dissolution of marriage by divorce was

          passed ex-parte against the appellant. The appellant had

          the recourse to set aside the said decree by filling an

          application under Order 9 Rule 13 of the CPC in the

          learned trial court itself, especially when it is contended

          by her that she didn’t receive any summons of the

          divorce case for the reasons noted above while we allow

          the instant application for condonation of delay and

          admit the appeal afresh, we are of the view that remedy

          of the appellant lies in the learned trial court by filing an

          application under Order 9 Rule 13 of the CPC alongwith

          an application under Section 5 of the Limitation Act.

                       9. For non-service of summons the learned

          appellate court is not in a position to consider, as to

          whether the summons of the case was actually served

          upon the appellant or not. It is learned trial court to

          decide the said fact on materials on record.
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                                  10. Considering such circumstances we are of

                     the view that the instant appeal is not maintainable,

                     however, the appellant is at liberty to file an application

                     under Order 9 Rule 13 of the CPC alongwith an

                     application under Section 5 read with Section 14 of the

                     Limitation Act and if such application is filed the

                     learned trial court shall consider liberally the application

                     for condonation of delay.

                                  11. Appellant is directed to take appropriate

                     steps within six weeks from the date of this order.


                                                                  (Bibek Chaudhuri, J)


                                                             ( Chandra Shekhar Jha, J)
Sudha/S.Tripathi

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