- (1.) D. B. Civil Misc. Appeal No. 627/2003 is directed against the order dated 18-1-2003 passed by Judge, Family Court No. 2, Jaipur, in case No. 39/2002 whereby an application of the appellant filed under Order 9 Rule 13 of the Civil Procedure Code was rejected.
(2.) ANOTHER Appeal No. 628/2003 has been directed against the order dated 18-1-2003, passed by Judge, Family Court No. 2, Jaipur, in Execution Case No. 5/2001 directing the appellant (wife) to hand-over the custody of the child to the respondent (husband) in execution of decree dated 26-7-1999. While taking up the appeal no. 627/2003, it is revealed that the appellant wife had filed an application under Order 9 Rule 13 C. P. C. for setting aside the exparte judgment and decree dated 26-7-1999 passed against her alleging therein that she is an illiterate lady and could not understand the proceedings of the Court and no process was served upon her and the matter was proceeded exparte. She further stated that she came to know about the aforesaid judgment and decree only when she contacted her advocate on 30-6-2001 when he obtained a copy of the said judgment. She had also alleged that the respondent (husband) had been involved in the flash trade and if the custody of her minor child is passed on to the respondent, the future of the child could be ruined. She also filed an application under Section 5 of the Limitation Act for condonation of delay. In reply to the aforesaid application, the respondent stated that the appellant wife had come to the Court on 8-6-2000, and had filed an application in the Court, as such she was having the knowledge of the judgment and decree passed in her absence. So it was prayed that the application of the appellant-wife was liable to be dismissed. After hearing both the parties, the court below dismissed the application of the appellant-wife mainly on the ground that in pursuance of the search warrant in the execution of the judgment, the custody of the child was ordered to be handed over to the respondent and as such consequent upon the search warrant, the appellant along with her child was produced in the court on 8-6-2000 and as such the appellant had the knowledge of the exparte decree passed against her vide order dated 20-6-1999 and as such the application of the appellant was dismissed. We have heard the counsel for the parties and gone through the record of the case.
(3.) THE main contention of the counsel for the appellant is that since the matter relates to the custody of the child and in the Family Court generally the advocates do not appear on behalf of the parties and as such in the facts and circumstances of the case when the appellant had shown sufficient reason for her inability to appear in the Court on account of having no knowledge of passing of decree, and was prevented on account of bonafide grounds, the Court should have accepted the application of the appellant in the interest of justice. Per contra, counsel for the respondent states that the impugned order has been based on the basis of the facts/situation of the case. We have given our anxious consideration to the rival contentions of the parties and find that the appellant had come to know of passing of the exparte decree against her only when the copy of the judgment was obtained and then only she could file the application for setting-aside the decree. It is also clear that the appellant along with her child was present in the court in the execution of the search warrant but it is clear that the appellant had come to know of the exparte decree and consequently issuing of search warrant against her after obtaining the copy of the judgment. In the facts and circumstances of the case, it was natural for the appellant to have contested the application for the custody of the child filed by the respondent and she could not take it lightly as she could not afford to pass custody of the child in view of her allegation that her husband had indulged in flash trade. Therefore, we are of the view that the court below has failed to consider the application of the appellant in right perspective. Therefore, the appeal No. 627/2003 of the appellant deserves to be allowed and the impugned order is liable to be set-aside. ;