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PETITIONER: SMT. YALLAWWA

       Vs.

RESPONDENT: SMT. SHANTAVVA

DATE OF JUDGMENT:       08/10/1996

BENCH: N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J:      The appellant had 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 has set aside the ex parte decree for divorce passed against the opponent by the learned Trial Judge.      In order  to appreciate the grievance of the appellant, who is alleged to be the ex-mother-in-law of the respondent, a few  facts leading  to these  proceedings are needed to be noted ar  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  was moved  by said Basappa being M.C.  No.25 of  1989 in the court of the learned Civil Judge, Gadag  in Karnatake  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 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 through  she was  no longer  the wife of Basappa in view of the decree of divorce yet she was unnecessarily interfering  with his possession and enjoyment of the  suit  property.  It  is  the  further  case  of  the appellant that  on 1.3.1990  the respondent  was served with the summons  in O.S. No.42 of 1990 but remained absent. Said Basappa, husband of the respondent, died on 26.5.1990. It is thereafter   that   the   respondent   filed   miscellaneous application being  Miscellaneous case  No.102 of  1990 under Order IX Rule 13 C.P.C. in the Court of Civil Judge at Gadag for setting  aside the  ex parte  divorce decree  passed  on 15.12.1989 It  was the  case of  the respondent that she has come to  know about  the ex  parte divorce  decree  only  on 31.3.1990; that  she was not served with summons on the said petition filed by Basappa. She also filed an application for

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condonation of  delay in  filing the  Miscellaneous case for setting aside the ex parte decree of divorce.      The learned  Trial Judge  held that  the delay  was not properly explained 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 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 files a revision   petition being  Revision Petition No.3683 of 1991 under Section  115 of  the  C.P.C.  in  the  High  Court  of Karnatake. The  learned  Single  Judge  of  the  High  Court allowed the said revision application on the ground that the respondent being  an illiterate lady would not have read the notice published  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 application under Order IX Rule 13 C.P.C. and also for setting aside the ex parte  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 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 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 ways of substituted service under Order V Rule 20.  That inspite  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  content the  proceedings and,  therefore,  the  ex parte decree  was rightly  passed by the Trial Court. It was further contended  that the  respondent had knowledge of the ex parte  decree at  least form  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 miscellaneous 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  Trail Court and that the order has been  wrongly   set  aside   by  the   High  Court.  In  the alternative, the  learned counsel submitted that in any case the respondents  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  setting aside  the  ex  parte decree. Hence the proceedings by way of said application had stood abated  as divorce  proceedings represented a personal cause of action both for the husband as well as the wife and consequently  the   right  to   sue  has  not  survived  for challenging the  ex parte  divorce decree after the death of decree-holder husband.  The application  was, therefore, not maintainable even  on that ground. Learned counsel, however,

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frankly submitted  that this  contention was  not  canvassed before 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 Trail Court as appeal did lie against the order of the Trial Court refusing to set  aside the  ex parte  decree as per the provisions of Order XLIII  Rule 1(d)  C.P.C. He submitted that of 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 the respondent was tried  to be  served in way if substituted service under Order V Rule 20 C.P.C. That she being an illiterate lady had not read  and could  not have read the newspaper publication about the  pendency  of  the  Hindu  Marriage  Petition  and consequently she  had no knowledge about the pendency of the said petition. Even otherwise it was not shown that any case was mode  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  manner  as required by  Order V Rule 12 as well as Order V Rules 15 and 17 C.P.C  Consequently, the  ex 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 ay case limitation ought  to have  been condoned  in the interest of justice by  the Trail Court itself 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 ex 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 ex parte decree deserved to be condoned in the interest  of justice  and as  the High Court has rightly condoned the  delay this  Court under  Article  136  of  the Constitution may  not interfere  with the said discretionary order. So far as the alternative contention of concerned, it was neither  canvassed before  the High Court nor before the Trial Court,  the said  contention deserves  to be  rejected even on  merits. The  said contention  has no  force for the simple reason  that once  and  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 husband in the absence of such decree  of divorce she would be entitles 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 consequences  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 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 impugned 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 her application  under Order IX Rule 13 C.PC. quashed by the High Court. It is true that she moved a revision application for that  purpose but  the order of the Trial Court refusing to set  aside the  ex parte  decree 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 (d) is mentioned an order under Rule

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13 if  Order IX  rejecting an application (in a case open to appeal) for  an order to set aside 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  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  1(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  order of  the Learned Trail Judge, it is obvious that the High Court was fully competent to interfere  with the order by re-appreciation the facts of the case. The learned Single Judge had doubt that respondent being an  illiterate lady  living in  a different town could not have  known through  the newspaper that her husband head filed a divorce petition against her and, therefore, she had no knowledge  about the  divorce petition. Consequently, the ex parte  decree could  be treated as one passed against the party which  was not served and which had no knowledge about the said proceedings. The learned counsel for the respondent was also  justified in submitting that the Trail 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.  It must  be kept  in view that substituted service  has to  be restored  as the last resort when the  defendant cannot be served in the ordinary was 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 substituted service  was restored  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  delay in  filing the application for setting aside  the ex  parte decree.  The High Court, in our opinion, has rightly code 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  content  the divorce petition  which had  terminated against  her without giving any hearing to her.      That takes  use 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 of  before the  High  Court. However, as  this contention  touches the maintainability of the 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 respondent-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 dissolved  by a  decree of  divorce on the ground that the  respondent deserted  him fora continuous period of not  less   that  two   years  immediately   preceding   the presentation of  the petition. 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

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is certainly  a personal case of action based on one or more matrimonial misconducts  alleged in the petition against the erring spouse.  Consequently, in such proceedings before and decree comes  to be  passed of  either of the spouse expires pending the trial then the personal case of action would die with the person. Such civil proceedings would not abate only if right  it sue survivors 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.  The next  question is whether after the decree  of divorce  of  passed  ex  parte  or  bipartite against the  other spouse  whether the  right to  sue  would survive for  the spouse  against whom  such decree  had 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 is not passed and proceedings are at any stage prior to  the decree,  no rights  or obligations  of  either spouse get  crystalized. 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 gets passed in such proceedings the rights and obligations of the respective spouses who are parties to such proceedings get crystalized 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  ceased  to  be husband  and   wife  and   become  ex-husband  and  ex-wife, proprietary right  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  1  of  the Schedule. Similarly, if the wife dies leaving behind her any property, as per Section 15 of the Hindu Succession Act, the property of  the female Hindu shall devolve according to the riles 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 inherit  her property  as  first  class heir. Consequently,  because of  a divorce  decree when  the spouses do not remain husband and wife, the mutual rights of inheritance in  each other‘s property on the death of either of them  got 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  be maintained  out of  her deceased husband’s‘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 Marriage Act, it  attaches a  social sigma  on the  concerned spouse.

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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 am 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,  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 affects 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 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 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  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 whin living, Save and except the  personal cause  of action  which dies  withe the deceased on  the principal of "actio personal is moritur cum persona,"   i.e. a  personal cause  of action  dies with the person, all  the rest  of causes of action which have impact on proprietary  rights and socio legal status of the parties cannot br said to have died with such a person.      Learned  counsel   for  the   appellant  submitted  one objection in  connection with such proceedings. He submitted that if  such an  action survives  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 go  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 decree is passed., the stage of launching any petition under Section 13(1)  dies bot  survive. It is true that Section 13 of the  Hindu Marriage  Act lays  sown that marriage whether solemnized 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 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 case of action against the  husband or  the wife,  as the case may be, dies with  the   departing  spouse.   As  no   rights  are  still crystalised by  them 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 whether such decree id 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

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aside such  ex parte  decree,  the  concerned  spouse  would suffer serious  legal damage  and injury without getting any opportunity to  get such  as 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  on bipartite then  the concerned  aggrieved 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  on  the  way  of  such proceedings being  maintained against the legal heirs of the decree-holder spouse.  A mere  look at the ground of Section 13(1) will  show that  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  had 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 a Hindu by conversion to  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 form; or has renounced  the world  by entering any religious order or had not  been heard  of as being alive for a period of seven years or  more. These  grounds to  say the  lease, to  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 not  only social but also  legal, as  we have  noted earlier.  It a decree of divorce on  these grounds  whether ex  parte or bipartite is not permitted  to be  challenges by the aggrieved spouse, it wold 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 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 to her heirs or legal representatives. Consequently  in such appellate proceedings or proceedings under Order IX Rule 13 C.P.C., 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 petitioner  so that  she or  he may  not share with other heirs  the property  of deceased spouse. So far as the other 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 an ex  parte decree  against the  concerned spouse. It must, therefore, be  held that when a divorce decree is challenged by the  aggrieved spouse  in proceedings  whether by  way of

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appeal or  be way  of application under Order 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 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.      It is  now time  for us  to refer  to the  direction 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 parte  decree against his wife relied upon a decision of  the Madras  High Court in the case of Saraswati Ammal vs. Lakshmi (A.I.R. 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 justification a decree of divorce was passed ex parte and the husband died subsequently 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 death the  proceedings at  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 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  petition  moved  by  the husband on  the ground  of desertion by his wife. It 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  a straight impact  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 the learned Judge to assume that there were no legal consequences  of ex  parte decree on the other spouse. It is also not correct to 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 of  such decree  is set  aside. On the other hand,

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such right  would get enlarged if such a 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 Mst. Bhan Kaur  vs. Isher 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 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  vs. Ramdas Manga Ingale (A.I.R. 1981 Bombay 187)  has correctly  held that  where an  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.  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 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 Panda  vs. Manohar Shamrao Pande (A.I.R. 1971 Bombay 183) and  the decision  of the  Division Bench of the Andhra Pradesh High  Court in  the case  of Verma Sunanda vs. 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 petitioning 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 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 application 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 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  confirm  either  in appeal  or   under  Order  IX  Rule  13  C.P.C.  The  second alternative contention  as canvassed  by the learned 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. Paripooran  JJ.   in  C.A.Nos.  12664-65/96  dt.22.9.96  the decision of  the learned  Single Judge  of the  Madras  High Court in  Saraswathi Ammal  vs.  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.      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 ex parte decree is found to be rightly set aside by the High Court, the marriage petition would automatically stand restored on the file of the learned Trial Judge at the stage prior to that at which they stood when the proceedings

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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 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 into any crystalized rights and obligations of either spouse, the said proceedings would 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 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 by any decree of divorce. Consequently, now 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. The appeal is disposed of accordingly. In the facts and circumstances of the case, there will be no order as to costs.