TMI Blog1989 (3) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... husband. Both the respondents filed written statements denying the allegation of adultery. The case was posted from time to time and on 12-1-1984 it was posted for trial on 22-2-1984. The case was, however, advanced to 4-2-1984 on an oral representation made on behalf of the petitioner (we do not see any petition to advance the trial of the case among the records sent up to this Court). The respondents were absent on 4-2-1984. The power of attorney holder of the petitioner was examined as P. W.-1. Arguments on behalf of the petitioner were heard on 4-2-1984 itself and the case was posted for orders on 8-2-1984. The Court below on 8-2-1984 passed a decree dissolving the marriage between the petitioner and the first respondent on its finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again . Counsel points out that the second marriage of the petitioner was at a time when there was a decree dissolving the marriage between the petitioner and the first respondent in force, no appeal had been filed against the decree and the time for filing the appeal had expired. It is also pointed out that the appeal itself was filed with a petition to condone the delay long after the second marriage of the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals in Section 28 of the Hindu Marriage Act, the decrees are held to be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and the forum for filing such appeal is prescribed by stating that every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of that Court . The appeal under the Hindu Marriage Act is thus a remedy available under the special enactment with all the characteristics of an appeal under the Civil Procedure Code and the High Court, in appeal has the same jurisdiction and exercises the same power and authority available in respect of every appeal under the Code . It is further stated at page 545 : Section 15 of the Hindu Marriage Act only de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired without an appeal having been presented, or if an appeal has been presented it has been dismissed. It is true that Section 15 does not in terms apply to a ease of an application for special leave to this Court. Even so, we are of the opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot be marrying immediately after the High Court's decree and thus take away from the losing party the chance of presenting an application for special leave. Even though Section 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Court's decree, for no appeal as of right lies from the decree of the High Court to this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made and the law allows an appeal as well as an application to set aside an ex parte order and actually these remedies have been resorted to, any act of the parties pending final disposal of those remedies availed of cannot have the effect of rendering them infructuous, so to speak. Where such remedies are provided from an order, the order should be taken to be valid and in force, but only subject to the result of the application to set aside the ex parte order or the result in the appeal. To hold otherwise would mean that by an act of the party, he can successfully defeat the lawful remedy accorded to the aggrieved person . 7. In taking the above view the learned Judge has followed the decision of the Supreme Court in Chandra Mohini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amined on 4-2-1984. The records do not show that the respondents had notice of the posting of the case on that date. The case was actually posted for trial on 22-7-1984. The trial had been advanced to 4-2-1984 and an ex parte decree is passed against the respondents on 8-2-1984. The respondents had thus no opportunity to cross-examine P.W. 1 and to adduce evidence on their behalf. The decree appealed against cannot, therefore, be sustained. It is accordingly set aside and the case is remanded to the lower Court for fresh disposal in accordance with law and in the light of the directions and observations contained in this judgment The parties will appear before the Court below on 3-4-1989. The appeal is allowed as indicated above. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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