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P.N. Kalathi Mudaliar Vs. Ellammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 819 of 1961
Judge
Reported inAIR1964Mad463
ActsHindu Marriage Act, 1955 - Sections 21 and 29(3); Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 - Sections 5; Code of Civil Procedure (CPC) , 1908 - Sections 150 - Order 9, Rule 13
AppellantP.N. Kalathi Mudaliar
RespondentEllammal
Appellant AdvocateT.T. Vijayaraghavan, Adv.
Respondent AdvocateR. Shanmugham, ;S. Mohan Kumaramangalam and ;K. Ramachandran, Advs.
DispositionRevision dismissed
Cases ReferredNaracinharaju v. Brundavanasahu
Excerpt:
family - jurisdiction - sections 21 and 29 (3) of hindu marriage act, 1955, section 5 of madras hindu (bigamy prevention and divorce) act, 1949 and section 150 and order 9 rule 13 of code of civil procedure, 1908 - whether sub-court vellore has jurisdiction to set aside ex parte order passed in petition filed by petitioner in sub-court chitoor - act of 1955 does not contain any provision which debars person against whom ex parte order of dissolution of marriage been passed previously from taking any proceedings to have that order set aside under order 9 rule 13 - principle certainly apply to facts of case - business of chitoor sub-court transferred to vellore sub-court - held, application filed by respondent in vellore court for setting aside ex parte order maintainable. - .....0. ix is an enabling one which prescribes what is to be done in the ordinary course to get an ex parte decree set aside. the learned judges pointed out that the rule does not say that the court that passed the decree is the only court that can set it aside and there is nothing restrictive in the wording. they accordingly held that the court to which the whole business of the court which passed the decree is transferred is entitled on application to it to set aside an ex parte decree passed by the other court.4. a similar question arose for decision before another bench of this court in m. guruswamy naicker v. sheikh muhammadhu rowther, air 1923 mad 92. where business of the court that granted the injunction was transferred to another court and an application under order 39 rule 2 (13).....
Judgment:
ORDER

Venkatadri, J.

1. The question that arises in this civil revision petition is whether the Sub Court, Vellore, has got jurisdiction to set aside the ex parte order passed in a petition filed by the petitioner in the Sub Court, Chittoor.

2. The petitioner filed a petition 0. P. No. 25 of 1952 in the Sub Court, Chittoor, Under Section 5 of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 for dissolution of his marriage with Ellammal, the respondent Therein. On 2-8-11952 the respondent was declared ex-parte and an order was passed by the Chittoor Sub Court, directing dissolution of marriage. The parties were residents of Sholinghur, which was originally part of the Chittoor Judicial District, and hence the petition 0. P. No. 25 of 1952 was filed in the Chittoor Sub Court. Subsequent to the order passed by that court, Sholinghur came within the jurisdiction of North Arcot Dt, under Act 30 of 1953. On 11-6-1959, the respondent filed an application Under Section 150 and Order 9 Rule 13 C. P. C. and Section 21 of the Central Act 25 of 1955, to set aside the ex parte order of dissolution of marriage dated 2-8-1952. This application was filed and numbered as I. A. No. 300 of 1959 on the file of the Sub Court, Vellore.. The petitioner resisted this application contending that it was not maintainable. The Sub Court agreeing with the contention of the petitioner dismissed the application filed by the respondent for setting aside the ex parte order. On appeal the learned District Judge, North Arcot at Vellore held that the application of the respondent was maintainable and reversed the order of the learned Subordinate Judge, It is against the order of the District Judge that the pro-sent civil revision petition is filed by the husband (petitioner).

2a. When the order dated 2-8-1952 was passed in O. P. 25 of 1952, Madras Act VI of 1949 (The Madras Hindu (Bigamy Prevention and Divorce) Act) was in force. The Central Act XXV of 1955 (The Hindu Marriage Act) came into force long after that date, that is on 18-51955. Section 4 (b) of the Central Act provides that-

'any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'

It is also necessary to refer to Section 29 Clause (3) of that Act which says:

'Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceedings may be continued and determined as if this Act had not been passed.'

The petitioner (husband) contended that since O. P. 25 of 1952 was not pending at the commencement of Act XXV of 1955, the resident is disentitled to file an; application to set aside the ex parte order passed against her under Madras Act VI of 1949. The learned District Judge negatived this contention and held that the respondent would not lose her remedy under Order 9 Rule 13 C. P. C. by reason of the repeal of the Madras Act by the Central Act. I am of opinion that the learned District Judge came to the right conclusion. Further, Section 29 (3) of the Central Act keeps alive the rights and remedies that have accrued due under the previous Acts in force such as the Madras Act VI of 1949. The Central Act also reiterates the provision contained in the Madras Act that all the provisions of the Civil Procedure/ Code shall apply and this would indicate that Parliament did not intend to destroy the procedural remedies that the parties litigating under the repealed Acts had acquired. The Central Act also does not contain any provision which debars a person against whom an ex parte order of dissolution of marriage has been, passed previously, from taking any proceedings to have that order set aside under 0rder 9 Rule 13, C. P. C.

3. The next Question for consideration relates to the jurisdiction of the Vellore Sub Court to entertain the petition filed by the respondent to set aside the ex parte order. Sholinghur, wherein the parties are residing, was originally within the territorial jurisdiction of the Chittoor Suto Court. On the formation of the Andhra State, Sholinghur was tacked on to the territorial jurisdiction of the Vellore Sub Court and Chittoor Sub Court became part of the Andhra State. As per G. O. 3058 Home Dept, D/- 29-9-1953, Vellore Sub Court got territorial jurisdiction over Sholinghur. It was contended by the petitioner in the court below that the. order of dissolution having been, passed by the Chittoor Sub Court, it was not open to the respondent to go to the Vellore Sub Court to have the ex parte order set aside and that it is only the court which passed the ex parte order that son set it aside. The learned District Judge rightly repelled this contention and came to the conclusion that it is only the Vellore Sub Court that has got jurisdiction. The petition itself was filed Under Section 150, C. P. C. and Order IX, Rule 13 C. P. C, Section 150 provides that-

'Where the business of any court is transferred to any other court, the court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the court from which the business was so transferred.'

This court has held in a number of decisions that where the business of a court is transferred to another court, it is only the latter court that can decide the question raised.. In Srinivasa Rao v. Hanumantha Rao, AIR 1922 Mad 10 a Bench of this court held that the expression 'the court by which the decree was passed' cannot be taken to be limited to the original court and that Rule 13 of 0. IX is an enabling one which prescribes what is to be done in the ordinary course to get an ex parte decree set aside. The learned judges pointed out that the rule does not say that the court that passed the decree is the only court that can set it aside and there is nothing restrictive in the wording. They accordingly held that the court to which the whole business of the Court which passed the decree is transferred is entitled on application to it to set aside an ex parte decree passed by the other court.

4. A similar question arose for decision before another Bench of this Court in M. Guruswamy Naicker v. Sheikh Muhammadhu Rowther, AIR 1923 Mad 92. Where business of the court that granted the injunction was transferred to another court and an application under Order 39 Rule 2 (13) was made to the latter court for punishing the breach of the injunction, it was held that the court had jurisdiction to entertain the petition Under Section 150. The Bench observed :

'Order 39 R. 2 (3) does not say that it is only the court granting the .injunction that should make the order under it, so that there is nothing in that rule which excludes the application of Section 150 by bringing it within the words 'save as otherwise provided for.'

A question pertaining to jurisdiction also came up for consideration before a Bench of this court in Naracinharaju v. Brundavanasahu, : AIR1943Mad617 . The facts in that case are : a preliminary mortgage decree was passed in 1925 by the Sub-ordinate Judge, Berhampore and it became final in 1926,. An execution, application for the sale of the property was filed in 1929 and when it was pending the Government of India (Constitution of Orissa) Order 1936, was passed by His Majesty in Council. Under that order, Orissa which was formerly a Dart of the Province of Bihar and Orissa was formed into a separate Province and was placed within the jurisdiction of the High Court of Judicature at Patna. A portion of the Ganjam Dt. which was formerly in Madras presidency was transferred to and became a part of Orissa. The Sub Court at Berhampore was in the area so transferred. The remaining portion of the Ganjam Dt. which remained in the Madras Presidency was made a part of the Vizagapatam District. It appeared that all the properties covered by the final decree were situated within the are that was retained in the Madras Presidency. One of the judgment-debtors filed an application in the Sub-Court, Berhampore, for scaling down the decree. Another application was filed by the same judgment-debtor in the Sub-Court, Chicacole. Both the applications were dismissed and the applicant thereon preferred civil revision petitions to the Madras High Court. The learned Judges in the course of their judgment after referring to Section 150 C. P. C. observed as follows at page 39 (of Mad LJ) : (at p. 625 of AIR) :

'If therefore the court of the Subordinate Judge of Chicacole can be regarded to be a court to which (in view of the fact that the mortgaged property came to be within its jurisdiction after the Order in Council) the business of the Court of the Subordinate Judge of Berhampore is transferred, the former Court will then have the same powers and will he liable to perform the same duties as the latter had before the transfer of sun business. In short, in respect of the business thus transferred, the transferee court will be in the same position as the court which passed the decree. The question then is whether the business of the court of the Subordinate Judge, Berhampore, can be found to have been transferred to the court of the Subordinate Judge, Chicacole in the circumstances existing in the present case. Whatever might have been said in regard to execution applications to which Section 37, C. P. C. in terms applied, the question as to fresh and independent applications, as the application Under Section 19 of Act IV of 1938. has now been found to be, is a vary different one. In dealing with an application, for setting aside an ex parte decree made to a court to which part of the territorial jurisdiction of another court that had passed the decree had been transferred, along with the locality in which the properties were situate, a Division Bench of this court in 42 Mad LJ 344 : AIR 1922 Mad 10 held' that the words used in Order. 9. Rule 13, C. P. C. providing that it should be made to 'the court by which the decree was passed' were not so definite and precise as to exclude the possibility of the application being entertained by the court which had subsequently come to be seized of the jurisdiction'.

The principles laid down in the above cases will certainly apply to the facts of the present case. The business of the Chittoor Sub Court having been transferred to the Vellore Sub Court, the application, filed by the respondent in the latter court for setting aside the ex parte, order is certainly maintainable.

5. The civil revision petition is dismissed, but in the circumstances without costs.


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