Vinay Kumar Mathur,J.:- I have heard learned counsel for the revisionists and learned counsel for respondent No. 1 and perused the record. 2. The instant civil revision under Section 115 C.P.C., is directed against the order of Additional District Judge, Court No. 6, Barabanki passed in Misc. Case No. 77 of 2000 (Smt. Kamlapati Vs. Raghvendra and others) whereby application 3-A under Order 9 Rule 13 C.P.C. read with Section 5 of the Limitation Act of applicant/respondent No. 1 has been allowed and the ex-parte judgment and decree dated 22.03.1984 passed in Original Suit No. 18 of 1984 (Kamla Prasad Mishra Vs. Kamlapati Devi) has been set aside and the case has been restored to its original number. 3. Brief facts giving rise to the instant revision are that Late Dr. Kamla Prasad filed a petition under Section 13 of Hindu Marriage Act for dissolution of his marriage with respondent No. 1 in the Court of Civil Judge (Senior Division), Barabanki contending that he was married to respondent No. 1 in 1954 and out of this wedlock three children Raghvendra (respondent No.2), Rabindra Prasad (respondent No. 3) and a daughter Riya were born. The father of the respondent No. 1 had made a gift of his entire property in 1969 to her and he died in the same year. It has been further contended that respondent No. 1 after the death of her father insisted that the plaintiff who was a Lecturer in Saket, Post Graduate College, Faizabad to live with her and look after the property gifted by her father to her. The petitioner did not agree for this, as a result whereof the attitude of respondent No. 1 changed towards him and she started to harass the petitioner and even treated him with cruelty. In 1973, respondent No. 1 without asking the petitioner left his house and started residing in her father's home and declared that she will reside there and look after the property of her father. It is contended that efforts were made to bring back respondent No. 1 but she did not agree. It has been alleged that respondent No. 1 deserted the petitioner since 1973 and has refused to live with the petitioner without any justification. It is contended that efforts were made to bring back respondent No. 1 but she did not agree. It has been alleged that respondent No. 1 deserted the petitioner since 1973 and has refused to live with the petitioner without any justification. It has also been contended that respondent No. 1 has treated the petitioner with cruelty and has severed matrimonial relationship with the petitioner for the last almost ten years. The Court held service upon respondent No. 1 sufficient by refusal and proceeded ex-parte and vide its judgment dated 22.03.1984 decreed the petition of the husband/petitioner for dissolution of marriage with respondent No. 1. 4. An application under Order 9 Rule 13 read with Section 5 of the Limitation Act for setting aside the ex-parte judgment and decree was moved with a delay of about 16 years by respondent No. 1 in the Court of District Judge which was transferred to the Court of Additional District Judge, contending that her husband has died on 06.04.2000 and she has learnt that her husband had filed original Suit No. 18 of 1984 in the Court of Civil Judge (Senior Division), Barabanki under Section 13 of Hindu Marriage Act for dissolution of marriage. It was also contended that Late Kamla Prasad had given his wrong address of village Kisunpur, Post Officer Udhauli, District-Barabanki, while in fact, he was not residing at that address. It was also contended that after the marriage, the applicant has continuously lived in village Ugai Agarh, District-Basti and the petitioner had also given her wrong address and managed to get a report of refusal and on this basis succeeded in obtaining ex-parte decree while neither any information of the pendency of the proceedings had been received by the applicant nor any summons had been received by her. On learning about the case, the applicant got the record inspected and filed the application for setting aside the ex-parte judgment and decree. Prayer for condonation of delay in moving the application has also been made in the same application. 5. On learning about the case, the applicant got the record inspected and filed the application for setting aside the ex-parte judgment and decree. Prayer for condonation of delay in moving the application has also been made in the same application. 5. The revisionist/opposite party Satyabhama and others filed objection 11-C stating that Kamla Prasad was married in 1954 and had three children out of which his daughter had expired, his wife Kamlapati started living in her 'maika' Tigra Pandit, Bagh Nagar, District-Basti and in 1985 Kamla Prasad married Satyabhama and out of this wedlock three daughters Divya, Malvika and Somya opposite party Nos. 4 to 6 were born. It was also contended that Dr. Kamla Prasad died on 06.04.2000. He had filed a petition in 1984 for dissolution of marriage in which service was held sufficient and ex-parte proceedings were held and ex-parte judgment was passed on 22.03.1984. It is further contended that the applicant has the knowledge of this judgment from the beginning but did not act in time and after a gap of 16 years has filed the application for setting aside the judgment and decree and she is not entitled to benefit under Section 5 of Limitation Act. Therefore, the application is liable to be rejected. 6. 18-C rejoinder affidavit was filed by the applicant refuting the averment that she had the knowledge of the case and also contending that Kamla Prasad had no residence in district-Barabanki. 7. Vide the impugned order, the application 3-A under Order 9 Rule 13 read with Section 5 of the Limitation Act has been allowed. The learned Court below has observed that the original suit was filed on 07.02.1984 in which 28.02.1984 was fixed for filing of written statement while 08.03.1984 was fixed for issues. On 08.03.1984, the service upon the defendant/applicant was held sufficient by refusal and order for proceeding ex-parte was passed. 21.03.1984 was fixed for evidence and on 22.03.1984 ex-parte judgment was passed. Thus the entire proceedings were completed within a span of one and a half month. The learned Court below has also observed that on the undelivered registered cover available on record the address of applicant has been given of village Tigra Pandit and the registered cover has been received back with a report of refusal on 15.02.1984, the papers which were found in the envelope were of some other case. The learned Court below has also observed that on the undelivered registered cover available on record the address of applicant has been given of village Tigra Pandit and the registered cover has been received back with a report of refusal on 15.02.1984, the papers which were found in the envelope were of some other case. On this basis, the learned Court has inferred that the intention of the petitioner was to confuse/misguide the defendant and even if the registered letter was delivered, the aim was that she may not know the details of the case. The Court has also dealt the objection of the applicant that the petitioner had given his wrong address of Barabanki while he had never resided at this address and had never been posted in Barabanki but had purposely given the wrong address of Barabanki to bring the case within the territorial jurisdiction of district Barabanki. The Court has found that though opposite party Nos. 3 to 6 have denied the allegations in this respect in their objection but have failed to file any document to prove that the petitioner was a resident of village Kisunpur, district-Barabanki. On the contrary, applicant Kamlapati through list 30-C filed voter list in which Kamla Prasad and Kamlapati have been shown as husband and wife and their address has been recorded as Ugai Agarh, district-Basti. Copy of the Pariwar Register has also been filed showing that the petitioner and the defendant were resident of District-Basti. The learned Court has concluded that the petitioner was not a resident of district-Barabanki and in order to secure an ex-parte judgment, he had deliberately given wrong address. Learned Court has also found that the address of the defendant/applicant was also wrong in the petition. Another objection was raised in the Court that after the death of the decree holder application under Order 9 Rule 13 C.P.C. was not maintainable because the petition for dissolution of marriage was filed for securing personal remedy. However, the Court has held that after the death of the husband, the wife has right to contest the suit because the decree for dissolution of marriage determines her status as wife and also decides rights in respect of property of the husband. The Court below has held that the delay in filing the application is not of much consequence and has observed that disputes between parties should be determined on merits. The Court below has held that the delay in filing the application is not of much consequence and has observed that disputes between parties should be determined on merits. 8. Learned counsel for revisionist has submitted that the impugned order is illegal, arbitrary and whimsical and has been passed by learned Court below in wrong exercise of jurisdiction and without taking into account the consequence that may follow of setting aside the decree after a gap of more than one and a half decade. Further submission is that the delay in moving the application for setting aside the ex-parte judgment and decree has not been properly explained. The application has not been moved during the life time of the husband. The revisionist No. 1 is the legally wedded wife of the deceased/petitioner. Her marriage was perfectly legal as at the time of the marriage, the deceased/petitioner was a divorcee and his earlier marriage with respondent No. 1 had been dissolved through the judgment and decree of the Competent Court. The marriage of the revisionist with Late Dr. Kamla Prasad was solemnized according to Hindu rites and three daughters were born out of this wedlock. Further submission is that the Court below has failed to appreciate that the decree of divorce is a personal remedy and as such same could not have been challenged after the death of the husband. The Court also failed to appreciate that on account of desertion, the earlier marriage had broken down and there was no matrimonial relationship between the petitioner and the defendant/Kamlapati. The Court below has adopted a hyper technical approach and the order is based on minor procedural irregularities and upon conjectures and surmises. Further submission is that Court below has heavily relied upon the judgment of Hon'ble Apex Court in R. Lakshmi Vs. K Saraswathi Ammal (1996) 6 SCC 371 while in fact the instant case is not covered by the said judgment as facts are entirely different and the judgment has no application in the instant matter. It has been prayed that the revision deserves to be allowed. 9. Reliance has been placed upon a judgment of Hon'ble Supreme Court rendred in Praveen Mehta Vs. Inderjeet Mehta AIR 2002 SC 2582 and Mahavir Singh Vs. Subhash (2008) 1 SCC 358 . 10. It has been prayed that the revision deserves to be allowed. 9. Reliance has been placed upon a judgment of Hon'ble Supreme Court rendred in Praveen Mehta Vs. Inderjeet Mehta AIR 2002 SC 2582 and Mahavir Singh Vs. Subhash (2008) 1 SCC 358 . 10. Learned counsel for the respondent has defended the impugned order and has contended that the alleged marriage of the deceased/petitioner with revisionist No. 1 was a nullity as the same took place while the deceased/petitioner had a living wedded wife. The ex-parte decree obtained on the face of record was obtained by practicing fraud and as such was invalid and illegal and had no civil consequences. Further submission is that the petitioner had given wrong address of both the parties deliberately with the purpose to file a petition in district-Barabanki where he might have influence over the officials and others who could have facilitate in getting ex-parte divorce decree within such a short period. The address of the defendant/respondent No. 1 was also deliberately given incorrectly so that service may not be effected upon her and he may obtain ex-parte decree in collusion with officials of the postal department. The marriage of respondent No. 1 with the deceased/husband was deliberately kept a guarded secret by the Late husband as is reflected from the fact that the nomination was not changed in the service record. The delay has been rightly condoned by the Court below, in view of the fact that wrong address of the parties had been supplied. The Court below has believed that the respondent has no knowledge of the ex-parte decree and has relied upon several rulings of the Hon'ble Supreme Court and the view is justified that the dispute should be settled on merits. The application was maintainable as the status of the first wife was a valid consideration. There is no illegality or infirmity in the impugned order. Reliance has been placed upon judgments in the cases of State of U.P., and another Vs. III Additional District Judge, Azamgarh AIR 1989 Alld. 14, Karnal Singh and another Vs. Aditya Narain Singh and others 2004 ALL. L. J. 3560 and United India Insurance Company Vs. Rajendra Singh and others 2000 (18) LCD 586. 11. Reliance has been placed upon judgments in the cases of State of U.P., and another Vs. III Additional District Judge, Azamgarh AIR 1989 Alld. 14, Karnal Singh and another Vs. Aditya Narain Singh and others 2004 ALL. L. J. 3560 and United India Insurance Company Vs. Rajendra Singh and others 2000 (18) LCD 586. 11. Learned Court below in the impugned judgment and order has observed that the suit for decree of divorce was filed on 07.02.1984 in the Court of Civil Judge (Senior Division), Barabanki and it is apparent from the perusal of the order sheet that 28.02.1984 was fixed for written statement and 08.03.1984 was fixed for framing of issues and on 08.03.1984, the service was held sufficient by refusal and orders for proceeding ex-parte were passed and 21.03.1984 was fixed for ex-parte evidence and on 22.03.1984, the ex-parte judgment was passed. Thus the total proceedings were completed within a period of one and a half months. The learned Court below has held that the address of the plaintiff was deliberately wrongly given of Barabanki in order to bring the suit within the jurisdiction of Barabanki Court. Learned Court has further held that through list 30-C, copy of voter list has been filed by the applicant in which Kamla Prasad Mishra and Kamlapati Mishra have been shown as husband and wife and their address has been mentioned as Agai Bagarh district Basti. Copy of the family register 32-C which has also been filed by the applicant which shows the residence of Kamla Prasad and Kamlapati as village Agai Bagarh district Basti while in rebuttal no paper has been filed by the opposite party Nos. 3 to 6 to establish that Kamla Prasad was not the original resident of village Agai Bagarh district Basti. Further no proof was filed to prima facie establish that at the time of institution of the suit in 1984 or prior to it or after the institution Kamla Prasad ever lived in village Kisunpur district Barabanki. Therefore, it has been inferred that the petitioner Kamla Prasad was not the resident of village Kisunpur district Barabanki and had given wrong address to obtain ex-parte decree in his favour. Therefore, it has been inferred that the petitioner Kamla Prasad was not the resident of village Kisunpur district Barabanki and had given wrong address to obtain ex-parte decree in his favour. The Court has further held that the applicant Kamlapati has been shown to be resident of village Tigra Pandit Police Station Bagh Nagar, District-Basti and it has been pleaded by the applicant that after the marriage she continuously resided in village Agai Bagarh and never resided in her 'maika'. On the basis of papers 31-C and 32-C the Court found that Kamlapati was a resident of village Agai Bagarh and not village Tigra in district Basti and no evidence in rebuttal has been filed by the opposite parties. Learned Court below has held that after the ex-parte decree, the petitioner Kamla Prasad died and it has been admitted by the applicant that he died on 06.04.2000. It has held that the application under Order 9 Rule 13 is maintainable even after the death of the husband as the decree for dissolution of marriage determines the status of the wife and also her rights over the properties of the deceased husband and has relied upon the judgment of Hon'ble Apex Court in R. Lakshmi Vs. K Saraswathi Ammal (1996) 6 SCC 371 . The learned Court below has relied upon various judgments of this High Court and Hon'ble Apex Court and conclude that the disputes between the parties should be decided on merits and hyper technical approach should not be adopted. It has held that after the death of Kamla Prasad, the applicant learnt about the divorce suit when she went to pursue the matter in an Arms Act case. Thereafter, without any delay she filed the application for restoration. It has held that the applicant had no knowledge of the case since 1984 up to 2000, therefore, it cannot be presumed that the applicant had knowledge of the case earlier. On these findings, it has allowed the application under Order 9 Rule 13 read with Section 5 of the Limitation Act and has condoned the delay and has set aside the ex-parte decree dated 22.03.1984 and decree dated 30.03.1984. 12. The grounds taken by the petitioner in his petition were cruelty and desertion. On these findings, it has allowed the application under Order 9 Rule 13 read with Section 5 of the Limitation Act and has condoned the delay and has set aside the ex-parte decree dated 22.03.1984 and decree dated 30.03.1984. 12. The grounds taken by the petitioner in his petition were cruelty and desertion. It appears that a combined application under Order 9 Rule 13 C.P.C. and Section 5 Limitation Act was moved by respondents for setting aside the ex-parte judgment and decree. It is an admitted case that the said application has been moved after a gap of almost 16 years. It has also come in the objection by the revisionists that the marriage of Kamlapati Mishra with revisionist No. 1 was solemnized according to Hindu rites in 1985 and at that time marriage of Kamla Prasad Mishra with respondent No. 1 Smt. Kamlapati Devi had been annulled by an ex-parte decree of divorce. It has also been stated in the objection that out of wedlock of deceased Dr. Kamla Prasad Mishra with revisionist No. 1 Smt. Satyabhama Mishra three daughters who are revisionists Nos. 2 to 4 in the instant revision were born. The age of the eldest daughter has been shown to be about 25 years in the instant revision and the age of youngest daughter has been shown to be about 20 years. 13. In R. Lakshmi Vs. K Saraswathi Ammal (1996) 6 SCC 371 , the Hon'ble Apex Court has observed that though the respondent therein was served but nobody appeared for the respondent. It has also held that wife should be and is competent to maintain the application under Order 9 Rule 13 even though the husband is dead as the decree obtained by him is effective in law and determines the status of the appellant. The Hon'ble Apex Court has further held that the decree of divorce determines her status as a wife apart from determining her rights in property of her deceased/husband. This gives her sufficient locus standi and right to contest the divorce proceedings even after the death of her husband. In the instant case, the facts are entirely different because the application under Order 9 Rule 13 has been moved after a gap of about 16 years. This gives her sufficient locus standi and right to contest the divorce proceedings even after the death of her husband. In the instant case, the facts are entirely different because the application under Order 9 Rule 13 has been moved after a gap of about 16 years. It appears that in the case before Hon'ble Apex Court, the ex-parte decree in favour of the husband was passed on 24.10.1983 and subsequently he died on 03.06.1984 thereupon respondent therein filed IA66 and IA67 of 1985 under Order 22 Rule 4 and order 9 Rule 13 C.P.C., to implead her mother-in-law as legal representative of her deceased/husband and prayed for setting aside the ex-parte decree of divorce and no application under Section 5 of the Limitation Act for condonation of delay had been moved. The second difference is that in the instant case, the deceased had married revisionist No. 1 after the decree of divorce had been passed and there does not appear to be any legal impediment for him in marrying again. Therefore, it cannot be said that the marriage was invalid. Three daughters were born out of this wedlock and in the school certificate of the children the name of the late Kamla Prasad Mishra has been shown as father of the said three daughters. No doubt the decree for divorce determines the status of wife and also rights of succession to the properties of the deceased/husband but inordinate delay of 16 years is a factum which should not be lightly brushed aside on the ground that disputes between the parties should be determined on merits and technical approach should not be adopted. It does not appeal that a wife will be ignorant of the fact that her husband has married again and such marriage has lasted for a period of almost 15 years and three daughters have been born out of this wedlock. This view is further fortified by the case law relied upon by learned counsel for the revisionist in the case of Mahavir Singh Vs. Subhash (2008) 1 SCC 358 . It appears that no action was taken by the respondents earlier and when Kamla Prasad Mishra died and the question of succession arose, an application under Order 9 Rule 13 read with Section 5 Limitation Act was moved. Subhash (2008) 1 SCC 358 . It appears that no action was taken by the respondents earlier and when Kamla Prasad Mishra died and the question of succession arose, an application under Order 9 Rule 13 read with Section 5 Limitation Act was moved. Learned Court below was swayed away on the grounds that the addresses of both the parties were incorrect and the proceedings have been completed within a period of one and a half months. The voter list and copy of family register which have been relied upon by learned Court below cannot be treated to be convincing grounds for holding that the deceased never resided at the address shown in his petition under Section 13 Hindu Marriage Act. 14. As regards the address of the defendant/respondent No. 1, it appears that the address of district Basti was given in the petition on the basis of the assertion that she was living in her 'maika'. Even if the respondent No. 1 was not residing in her 'maika'. Some of the members of her family (her close relations etc.) must have been residing there and since there was an endorsement of refusal, the learned Trial Court did not commit any material irregularity in holding the service sufficient on the basis of refusal. 15. It is also pertinent to point out that learned Court below altogether did not consider the effect of setting aside the ex-parte decree passed 16 long years ago, particularly in the background that the petitioner has died and his second wife and children might not be in a position to find out the correct facts to defend their case effectively and after the restoration, the status of the second wife and the children will be materially affected. 16. Further I am of the view that learned Court below should have dealt the application under Section 5 of the Limitation Act very carefully and by applying the general law that disputes should be settled on merits and hyper technical approach should not be adopted, the delay ought not to have been condoned in a cursory manner. Thus to may mind, learned Trial Court has exercised jurisdiction not vested in it under the law and has acted with material irregularity in allowing application under Section 5 of the Limitation Act by recording a finding based on conjectures and surmises. Thus to may mind, learned Trial Court has exercised jurisdiction not vested in it under the law and has acted with material irregularity in allowing application under Section 5 of the Limitation Act by recording a finding based on conjectures and surmises. Therefore, the same cannot be treated to be a finding of fact and this Court under Section 115 C.P.C., can interfere in such matters. It is true that in State of U.P., and another Vs. III Additional District Judge, Azamgarh AIR 1989 Alld. 14 relied upon by learned counsel for the respondents, an Hon'ble Single Judge of this Hon'ble Court has held that the finding recorded by the Trial Court about the sufficiency of cause under Order 9 Rule 13 of the Code in restoring the suit and sufficient cause for condonation of delay under Section 5 of Limitation Act are essential findings of fact and the same cannot be re-examined by the Revisional Court under Section 115 of the Code. However, I am of the view that the case in hand is a case where the learned Court below has exercised the jurisdiction not vested in it erroneously and has failed to exercise the jurisdiction vested in it with material irregularity in deciding the application under Section 5 of the Limitation Act. A period of 16 years is a long period and sufficient and convincing reasons for not preferring any application within time had to be given by the applicant/respondent. A mere statement that the applicant learnt about the case in 2000 when she went for pairvi in an arms case cannot be held to be a valid and convincing ground for condonation of such inordinate delay because of the fact that the second wife and three children were in existence for past more than 15 years and it cannot be presumed that the applicant did not know anything about the second marriage or the existence of the second wife and children during this period. Therefore, the case laws relied upon by learned counsel for the respondent which has only persuasive value does not help the respondent. The other case law Karnal Singh and another Vs. Aditya Narain Singh and others 2004 ALL. Therefore, the case laws relied upon by learned counsel for the respondent which has only persuasive value does not help the respondent. The other case law Karnal Singh and another Vs. Aditya Narain Singh and others 2004 ALL. L. J. 3560 relied upon by learned counsel for the respondent also does not help the respondent because the impugned order can be interfered under Section 115 C.P.C., second proviso and sub Section II because the order if allowed to stand will amount to failure of justice because it will result in gross injustice to the parties against whom it has been made. The order if allowed to stand would mean that the marriage of the revisionist No. 1 with deceased/Kamla Prasad would be invalidated and status of the wife as well as children will be adversely affected. 17. As a result, the revision succeeds and is allowed and the impugned order dated 05.09.2012 and its former order are set aside. No order as to costs. ______________