SMT. YALLAWWversusSMT. SHANTAVVA

A                             SMT. YALLAWWA
                                        v.
                              SMT. SHANTAVVA

                               OCTOBER 8, 1996

B                  [N.P. SINGH AND S.B. MAJMUDAR, JJ.)

        Hindu Maniage Act, 1955--Section 13(1 )(i-b )-Divorce Petition by lms-
  band-Ex parle decree-Application under Order IX Rule 13 CPC for setting
  aside exparte decree-Maintainability-Procedure of substituted service of
C notice-Validity of-Respondent wife an illiterate lady-Sufficient cause for
  condoning the delay in filing application-Exparle decree rightly set aside.

          Civil Procedure Code, 1908---0rder IX Rule 13-Application for setting
    aside exparle decree-Delay in filin~ondonation application-Procedure
    of substituted service of notice-Respondent an illiterate lady-Sufficient
D   cause for delay in filing applicatio11-'-Expa1te decree rightly set aside.

           Civil Procedure Code, 1908---0rder XX!!, Order IX, Rule 13-Abate-
    ment-Divorce Proceedings-Ex-pmte decree-Death of decree holder-Ap-
    plication for setting aside expmte decree-Maintainable-Appeal against
    dismissal of application-Whether abates-Held, no.
E
          Civil Procedure C<Jde, 1908---0rder XLIII, Rule J(d)-Appeal against
    order refusing to set aside ex-parle divorce decree-Maintainable.

         Respondent's husband, B, filed a divorce petition u/S 13(1)(i·b) of
  the Hindu Marriage Act, against the respondent on the ground of deser-
F tion. The divorce petition was decreed exparle. Husband of the respondent
  died on 26.5.1990. It is thereafter that: the respondent filed an application
  under Order IX Rule 13 CPC for setting aside the ex-parle divorce decree
  passed against her alleging that she had come to know about the decree
  only on 31-3-1990 and that she was not served with the summons in the
G divorce petition filed by her husband. She also filed an application for
  condonation of delay in filing the miscellaneous case for setting aside the
  ex parle decree. The trial Court dismissed the respondent's application
  under 0. IX R. 13 CPC as time barred, holding that the delay was not
  prop~rly explained and that the respondent was aware of the divorce
H proceedings much prior to the date on which she was alleged to have come
                          .             268
                           YALLAWWAv. SHANTAWA                               269
    to know about the divorce decree. Revision filed u/s 115 CPC was allowed        A
    on the ground that the respondent being an alliterate lady would not have
    read ~he notice published in the newspaper about the pendency of the
    divorce proceeding against her and, therefore, this was a fit case for
    condoning the delay in filing the application under Order IX Rule 13 CPC
    and also for setting· aside the exparte decree. Appellant, mother of B filed    B
    this appeal against the order of the High Court.

           The appellant submitted that the respondent was duly served by way
    of substituted service under O. V R. 20 CPC; that in spite of the publication
    of notice of pendency of the Hindu Marriage Petition in the newspaper           C
    having circulation in the local area, the respondent did not contest the
    proceedings; that the respondent had knowledge of the exparte decree at
    least from the day on which she was served with the summons 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 application;
    that the respondent's application under O.IX. R. 13 CPC was not main-           D
    tainable as deceased B who had obtained the divorce decree against the
    respondent was already dead by the time the respondent filed the applica-
    tion for setting aside the exparte decree as the proceedings by way of that
    application had stood abated as divorce proceedings represented a per-
    sonal cause of action both for the husband as well as the wife and              E
    consequently the right to sue had not survived for challenging the exparte
    decree after the death of decree-holder husband and if such an action
    survives and the challenge to a decree exparte 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 n11n spouses will          F
    have to be joined in the litigation and this would go counter to Sec. 13 of
    the Hindu Marriage Act. The respondent wife submitted that the revision


-   application ought to have been treated as an appeal from the order by the
    Trial Court as appeal did lie against the order refusing to set aside the
    exparte decree as per the provisions of Order XLIII R. l(d) CPC; that she
    being an illiterate lady had not read and could not have read the
                                                                                    G

    newspaper publication about the pendency of the Hindu Marriage Petition
    and even otherwise it was not shown that any case was made 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             H
    270                  SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A manner as required by Order V R. 12 as well as 0. V rules 15 & 17 CPC.
  Consequently, the exparte decree was a nullity being passed against a party
  which was not served in accordance with law and in such a null and void
  decree, there was no question of limitation or in any case limitation ought
  to have been condoned in the interest of Justice by the trial Court itself;
B that it was not true that the respondent knew about the exparte decree
  when she was served with notice on 1-3-1990 and even assuming that it was
  so, the delay of few months in applying for setting aside the exparte decree
  deserved to be condoned in the interest of justice and as the High Court
  had rightly condoned the delay this Court under Article 136 of the Con-
C stitution might not interfere with that discretionary order; that proceed-
  ings for setting aside such an exparte decree would not abate on the death
  of the original petitioner-husband after he had obtained such an exparte
  decree because such an exparte divorce decree has pernicious consequen-
  ces as once an exparte decree is passed against the wife on the ground of
  desertion apart from the stigma which would be attached to the respondent
D by the decree, she would lose her right in the husband's property and in
  case of demise of the husband in the absence of such decree of divorce she
  would be entitled to inherit the deceased husband's property as his widow
  being heir of first class along with the mother of the deceased.

E         Disposing of the appeal, this Court


        HELD : 1.1. The respondent was seeking to get the order of the trial
  Court dismissing her application under Order IX Rule 13 C.P.C. quashed
  by the High Court. She moved a revision application for that purpose but
p the order of the Trial Court refusing to set aside the exparte decree was
  clearly appealable under Order XLllI Rule l(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 13 or Order IX rejecting an
  application (in a case open to appeal) for an order to set aside a decree
  passed ex parte. A decree granting divorce under Section 13(1)(i-b)
G 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
  a subject-matter of an appeal under Order XLIII Rule l(d). Therefore, the
H revision application filed by the respondent before the High Court should
{
'                         YALLAWWAv. SHANTAWA                               271

    be treated in substance as one by way of miscellaneous appeal. Once the A
    High Court has appellate jurisdiction over the impugned order of the trial
    Judge, the High Court was fully competent to interfere with the order by
    re-appreciating the facts of the case. [278-D-G]

          1.2. Substituted service of notice has to be resorted to as the last
    resort when the defendant cannot be served in the ordinary way and the
                                                                                   B
    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, almost automatically the procedure of substituted service was
    resorted to. Respondent being an illiterate lady would not have known          c
    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.
                                                                     [279-C-D]     D
           1.3. 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 for a continuous period of not
    less than two years immediately preceding the presentation of the petition.
    Such petition for divorce can be moved either by the husband or the wife, E
    as the case may be. To that extent it is certainly a personal cause of action
    based on one or more matrimonial misconduct~ alleged in the petition
    against the erring spouse. Consequently, in such proceedings before any
    decree comes to be passed if either of the spouse expires pending the trial
    then the personal cause of action would die with the person. Such civil
                                                                                  F
    proceedings would !lot abate only if right to sue survives 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. So long as the decree is
    not passed and proceedings are at any stage prior to the decree, no rights G
    or obligations of either spouse get crystalised. The marital status of both
    the spouses remains in tact as it was prior to the filing of the suit. But
    once a decree of divorce gets passed in such proceedings the rights and
    obligations of the respective spouses who are parties to such proceedings
    get crystalised under the orders of the court. The marriage gets dissolved: H
    272                   SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.
A ' 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
  Hind 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,
B proprietary rights of both the spouses also get affected. Consequently,
  because of a divorce decree when the spouses do not remain husband and
  wife, the mutual rights ofinheri<ance in each other's property on the death
  of either of them get extinguished. Therefore, apart from the divorce decree
  destroying the erstwhile status of husband and wife, it has a direct impact
C on the property rights of the concerned spouses. Even that apart, as per
  Section 9 of the Hindu Adoption and Maintenance Act, 1956, a Hindli
  widow is entitled to be maintained out of her deceased husband'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,
D when her husband dies after obtaining the said decree against her. When
  a decree of divorce gets passed against a spouse on the grounds of
  matrimonial misconduct mentioned in Section 13(1) of the Hindu Mar-
  riage Act, it attaches a social stigma on the concerned spouse. 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 an ex parte decree to get it set aside
E 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 effects flow from divorce decree, it cannot be said with
F 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
G survive to such an aggrieved spouse. 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 when
  living. Save and except the personal cause of action which dies with the
H deceased on the principle of "actio personal is moritur cum persona" i.e. a
                           YALLAWWAv. SHANTAWA                               273
    personal cause of action dies with the person, all the rest of causes of        A ·
    action which have impact on proprietary rights and socio legal status of
/   the parties cannot be said to have died with such a person. Once a divorce
    decree is passed, the stage of launching any petition under Section 13(1)
    does not survive. When a divorce decree is challenged by the aggrieved
    spouse in proceedings whether by way of appeal or by way of application         B
    under Order IX 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           C
    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.
    After the decree of divorce is obtained by the petitioning husband against      D
    his wife she was 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 appe~l 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        E
    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 ag-
    grieved spouse who wants such decree to be set aside and when the other         p
    heirs of the deceased husband would naturally be intersted in getting such
    decree confirmed either in appeal or under Order IX Rule 13 C.P.C.
          [279·G-H; 280-A-B; D-H; 281-A-G; 282-B; 283-H; 284-A-C; 286-B-D]

           1.4. As the ex-parte decree was found to be rightly set aside by the
    High Court, the marriage petition would automatically stand restored on         G
    the file of the trial Judge at the stage prior to that at which they stood
    when the proceedings 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 proceed-
    ings now, the proceedings will certainly assume the character of a personal     H
    274                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A .cause of action for the deceased husband and there being no decree
    1culminating into any crystalized rights and obligations of either spouse,
    the said proceedings woul~l 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 had already
B   stood dissolved by the death of the husband. No action, therefore, survives
    for the courts 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 that the ex parte
    decree was 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
C   file. The Hindu Marriage Petition moved by B, the husband of the respon-
    dent will be treated to have abated and shall stand disposed of as infruc-
    tuous. [286-G-H; 287-A-C]

         Saraswathi Ammal v. Lakshmi, A.I.R. (1989) Madras 216 and Mrs.
    Bhan Kuau v. !sher Singh & Ors., A.I.R. (1959) Punjab 553, overruled.
D
         Kamalabai v. Ramdas Manga Ingale, A.I.R. (1981), Bombay 187;
    Suhas Manohar Pande v. Manohar Shamrao Pande, A.I.R. (1971) Bombay
    183 and Vempa Sunanda v. Vempa Venkata Subbarao, A.l.R. (1957) Andhra
    Pradesh 424, approved.
E           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9852 of
    1996.

         From the Judgment and Order dated 7.12.95 of the Karnataka High
    Court in C.R.P. No. 3683 of 1991.
F           G.V. Chndrashekhar for Ms. Sangeeta Kumar for the Appellant.

            P. Mahale for the Respondent.

            The Judgment of the Court was delivered by
G       S.B. MAJMUDAR, J., The appellant has 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 had set aside the ex
  parte decree for divorce passed against the opponent by the learned Trial
H Judge.
            YALIAWWAv. SHANTAVVA(S.B.MATMUDAR,J.]                     275

      . In order to appreciate the grievance of the appellant, who is alleged A
to be the ex-mother-in-law of the respondent, a few facts leading to these
proceedings are needed to be noted at 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 B
was moved by said Basappa being M.C. No. 25 of 1989 in the court of the
learned Civil Judge, Gadag in Karnataka 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 C
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
though she was no longer the wife of Basappa in view of the decree of
divorce yet she was unnecessarily interfering with his possession and en-
joyment of the suit property. It is the further case of the appellant that on D
1.3.1990 the respondent was served with the summons in O.S. No. 42 of
1990 but remained absent. Thereafter, the Trial Court granted a temporary
injunction against the respondent, said Basappa, husband of the respon-
dent, died on 26.5.1990. It is thereafter that the respondent filed miscel-
laneous application being Miscellaneous Case No.102of1990 under Order
IX Rule 13 C.P.C. in the Court of Civil Judge at Gadag for setting aside E
the ex parte divorce decree passed on 15.12.1989. It was the case of the
respondent that she had come to know about the ex parte divorce decree
only on 31.3.1990; that she was not served with the summons in the said
petition filed by Basappa. She also filed an application for condonation of
delay in filing the miscellaneous case for setting aside the ex parte decree p
of divorce.

       The learned Trial Judge held that the delay was not properly ex-
plained 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 G
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 filed a revision
petition being Revision Petition No. 3683 of 1991 under Section 115 of the
C.P.C. in the High Court of Karnataka. The learned Single Judge of the
High Court allowed the said revision application on the ground that the H
    276                   SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.
A respondent being an illiterate lady would not have read the notice publish-
  ed 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 applica-
  tion under Order IX Rule 13 C.P.C. and also for setting aside the ex parte
B 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
C 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
D 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 way of substituted
E service under Order V Rule 20. That in spite 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 contest the
  proceedings and, therefore, the ex parte decree was rightly passed by the
  Trial Court. It was further contended that the respondent had knowledge
F of the ex parte decree at least from 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 miscel-
  laneous 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 Trial Court and that the order. has been wrongly set
G aside by the High Court. In the alternative, the learned counsel submitted
  that in any case the respondent's 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
H setting aside the ex parte decree. Hence the proceedings by way of said
              YALLAWWAv. SHANTAWA[S.B. MATMUDAR,J.]                      277

  application had stood abated as divorce proceedings represented a per- A
  sonal cause of action both for the husband as well as the wife and
  consequently the right to sue had not survived for challenging the et parte
  divorce decree after the death of decree-holder husband. The application
  was, therefore, not maintainable even on that ground. Learned counsel,
  however, frankly submitted that this contention was not canvassed before B
  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 Trial Court as appeal did lie
  against the order of the Trial Court refusing to set aside the et parte decree C
  as per the provisions of Order XLIII Rule l(d) C.P.C. He submitted that
  if 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 that the respondent was tried to be served by way
  of substituted service under Order V Rule 20 C.P.C. That she being an D
  illiterate lady had not read and could not have read the newspaper publi-
  cation about the pendency of the Hindu Marriage Petition and consequent-
  ly she had no knowledge about the pendency of the said petition. Even
  otherwise it was not shown that any case was made out by the plaintiff in
  that case for getting the notice served by way of substituted service and no E
  attempt was made to serve the respondent in ordinary manner as required
o by Order V Rule 12 as well as Order V Rules 15 and 17 C.P.C. Conse-
  quently, the et 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 any case limitation ought
  to have been condoned in the interest of justice by the Trial Court itself F
  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 et 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 et parte decree
  deserved to be condoned in the interest of justice and as the High Court G
  has rightly condoned the delay this Court under Article 136 of the Con-
  stitution may not interfere with the said discretionary order. So far as the
  alternative contention is concerned, it was submitted that apart from the
  fact that it was neither canvassed before the High Court nor before the
  Trial Court, the said contention deserves to be rejected even on merits. H
    278                   SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.
A The said contention has no force for the simple reason that once an 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 husb(UKI in the absence of such decree of divorce she
B   would be entitled 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 conse-
    quences 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
C   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 im-
    pugned 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
D   her application under Order IX Rule 13 C.P .C. quashed by the High Court.
    It is true that she moved a revision application for that purpose but t!J.e
    order of the Trial Court refusing to set aside the ex parte 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
E   (d) is mentioned an order under Rule 13 of Order IX rejecting an applica-
    tion (in a case open to appeal) for an order to set aside a decree passed        0
    ex parte. It cannot be disputed that 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
F   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 l(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
G   order of the learned Trial Judge, it is obvious that the High Court was fully
    competent to interfere with the order by re-appreciating the facts of the
    case. The learned Single Judge has found that respondent being an il-
    literate lady living in a different town could not have known through the
    newspaper that her husband had filed a divorce petiton against her and,
H   therefore, she had no knowledge about the divorce petition. Consequently,
                 YALIAWWAv. SHANTAWA[S.B. MAJMUDAR,J.)                       279

      the ex parte decree could be treated as one passed against the party which A
      was not served and which had no knowledge about the said proceedings.
tf.   The le~ned counsel for the respondent was also justified in submitting that
      the Trial 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. B
      It must be kept in view that substituted service has to be resorted as the
      last resort when the defendant cannot be served in the ordinary way 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 sub- C
      stituted service was resorted 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 D
      delay in filing the application for setting aside the ex parte decree. The
      High Court, in our opinion, has rightly come 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 contest the divorce petition which had terminated against her E
      without giving any hearing to her.

             That takes us 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 or before the
      High Court. However, as this contention touches the maintainability of the
                                                                                     F
      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 respon·
      dent-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 dis-
      solved by a decree of divorce on the ground that the respondent deserted G
      him for a continuous period of not less than two years imn)ediately preced-
      ing the presentation of the petiton. 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 is certainly a personal cause of action based
      on one or more matrimonial misconducts alleged in the petition against the H
    280                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
                                                                        !
A erring spouse. Consequently, in such proceedings before any decree comes
  to be passed if either of the spouse expires pending the trial then the
  personal cause of action would die with the person. Such civil proceedings        ·V
  would not abate only if right to sue survives after the death of one or more
  of the parties to the proceedings as laid down by Order XXII Rule 1 C.P.C.
B 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 is passed ex parte or bipartite against the other spouse
  whether the right to sue would survive for the spouse against whom such
C decree has 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
D
  is not passed and proceedings are at any stage prior to the decree, no rights
  or obligations of either spouse get crystalised. 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 get passed in such proceedings the rights and obligations of .
  the respective spouses who are parties to such proceedings get crystalised
E 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
F ceased to be husband and wife and become ex-husband and ex-wife,
  proprietary rights 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
  I of the Schedule. Similarly, if the wife dies leaving behind her any property,
G as per Section 15 of the Hindu Succession Act, the property of the female
  Hindu shall devolve according to the rules 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
H inherit her property as first class heir. Consequently, because of a divorce



                                                                                    /r
           YALIAWWAv.SHANTAVVA[S.B.MAJMUDAR,J.]                        281

decree when the spouses do not remain husband and wife, the mutual A
rights of inheritance in each other's property on the death of either of them
get 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 B
be maintained out of her deceased husband'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 Mar-
                                                                              c
riage Act, it attaches a social stigma on the concerned spouse. 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 an 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, D
 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 effects 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 E
 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 affe"cted 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 ad- p
ministrator 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 when living. Save and except the personal
 cause of action which dies with the deceased on the principle of "actio
perso~al is moritur cum persona" i.e. a personal cause of action dies with G
 the person, all the rest of causes of action which have impact on
 proprietary rights and socio legal status of the parties cannot be said to
 have died with such a person.

      Learned counsel for the appellant submitted one objection in con-
nection with such proceedings. He submitted that if such an action survives   H
    282                   SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.
A 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 to 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
B decree is passed, the stage of launching any petition under Section 13(1)
  does not survive. It is true that Section 13 of the Hindu marriage Act lays
  down that marriage whether solemnised 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
C 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 cause of action against the husband or the wife, as the
  case may be, dies with the departing spouse. As no rights are still crys-
D talised by then 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
E whether such decree is 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 aside such
F ex parte decree, the concerned spouse would suffer serious legal damage
  and injury without getting any opportunity to get such a 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 or bipartite then the concerned aggrieved
G 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 in the way
  of such proceedings being maintained against the legal heirs of the decree-
H holder spouse. A mere look at the ground of Section 13(1) will show that
           YALLAWWAv. SHANTAWA[S.B. MAJMUDAR,J.]                      283

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 has 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 Hindu by conversion to
                                                                              B
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 from; or has renounced
the world by entering any religious order or has not been heard of as being C
alive for a period of seven years or more. These grounds of say the least,
if 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 only special but also legal, as we have noted earlier. If a
decree of divorce on these grounds whether exparte or bipartite is not D
permitted to be challenged by the aggrieved spouse, it would 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 E
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 or her heirs or legal representatives. Consequently in
such appellate proceedings or proceedings under Order IX Rule 13 C.P.C., F
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 petitioners so that she or he may not
share with other heirs the property of deceased spouse. So far as the other G
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 ex parte decree against the concerned spouse. It must,
therefore, be held that when a divorce decree is challenged by the ag-
grieved spouse in proceedjngs whether by way of appeal or by way of H
    284                    SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A application under Order IX 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 applica-
    tion is made under Order IX Rule 13 by the aggrieved spouse for getting
    such an ex parte decree of divo,_-e set aside. Similarly, the right to sue would
B   also survive even if the other sµouse dies pending such appeal or applica-
    tion 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.
c          It is now time for us to refer to the decisions 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 pmte decree against his wife relied upon a decision of
D   the Madras High Court in the case of Saraswathi Ammal v. Lakshmi, A.LR.
    (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 justifica-
E   tion a decree of divorce was passed ex parte and the husband died sub-
    sequently 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 his death the proceedings at
F   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
G   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
H
            YALIAWWAv. SHANTAVVA[S.B.MAJMUDAR,J.]                      285

petition moved by the husband on the ground of desertion by his wife. It A
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 straight impact B
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 to learned Judge to assume that there were no legal conse-
quences of ex parte decree on the other spouse. It is also not correct to c·
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 if such decree
is set aside. On the other hand, such right would get enlarged if such a D
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 Mrs. Bhan Kaur
v. /sher 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 E
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 v. Ramdas Manga Ingale, A.I.R. 1981 Bombay 187 has
correctly held that where in 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. F
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 G
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 Pande v. Manohar
Shannrao Pande, A.I.R. 1971 Bombay 183 and the decision of the Division H
    286                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A Bench of the Andhra Pradesh High Court in the case of Vempa Sunanda
  v. 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 petition-
  ing 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
B 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 applica-
  tion 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
C 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 confirmed either in appeal or under Order IX Rule 13
  C.P.C. The second alternative contention as canvassed by the learned
D 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. Paripoornan, JJ. in C.A. Nos. 12664-65/96 dt.
E   22.9.96 the decision of the learned Single Judge of the Madras High Court
    in Saraswathi Ammal v. 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.


F       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 et parte decree is found to be rightly set aside by the High Court,
  the marriage petiton would automatically stand restored on the file of the
  learned Trial Judge at the stage prior to that at which they stood when the
G proceedings got intercepted by the et 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
H into any crystalized rights and obligations of either spouse, the said
           YALLAWWAv. SHANTAWA[S.B. ~MUDAR,J.)                      2537

proceedings would obviously stand abated on the ground that right to sue A
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 B
by any decree of divorce. Consequently, now that 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. C
The appeal is disposed of accordingly. In the facts and circumstances of.
the case, there will be no order as to costs. .

RA.                                                 Appeal disposed of.