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"Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned."

16. Learned counsel referred to the case of Vinod Chandra Dubey v. IX Additional District and Sessions Judge, Allahabad (1978 All LJ 1181) where a learned single Judge construed the words "from the date of such order" to be the date of actual and constructive knowledge of the party affected by such order. There can be no dispute in regard to this proposition of law. The point is if the party had constructive knowledge, then in that case the order need not be communicated at all. In the present case, the service of the original notice was by refusal. The evidence was that it was actually tendered but refused. The husband had examined a witness before whom the notice was tendered. The court below has not considered this evidence. Consequently, it cannot be said that the wife had no knowledge or could not have any knowledge if necessary diligence had been exercised. The very fact that the wife was living apart from the husband is indicative of the fact that there were serious differences between them. It seems more in consonance with the case taken by the husband that only after he had remarried that the proceedings had been started to harass him. It, therefore, appears to me that the wife had constructive knowledge of the earlier divorce proceedings. Consequently, it must be held that the proviso to Rule 13 of Order 9 of the Code came into play, and the mere irregularity in the service of the summons would not be a ground for the setting aside of the ex parte decree.

17. Learned counsel for the opposite party also argued that the findings of fact cannot be interfered with in revision under Section 115 of the Code. This is correct, but if a finding of fact is based on non-consideration of material evidence, there is material irregularity in exercise of jurisdiction. Such a finding of fact arrived at by the court below can always be inter fered with.

18. In the case of Ram Dhani v. Pur-shottam Lal Srivastava (1976 All WC 354) : (1976 All LJ 676) cited by the learned counsel for the opposite party the facts were entirely different. In that case, the application for setting aside the ex parte decree was not served with the summons of the suit, but notice was served on his counsel, who accepted the same. It was held to amount to a sufficient service on the decree-holder. The question whether notice was served o.r not would be a question of fact depending upon the circumstance of each case. The question whether there was constructive knowledge of the suit or not would again depend on evidence and circumstance emanating from the facts of the case, but where the court does not consider the material evidence, the finding is vitiated by an irregularity in exercise of jurisdiction.

19. The last contention of the learned counsel for the opposite party is that after the order of the court below was set aside and the application for setting aside an ex parte decree was dismissed, (sic) it would be condemning the wife without being heard. In my opinion, this is not correct. Once it is held that she had constructive knowledge of the divorce proceedings, she had to act promptly to take recourse to the remedy provided under the law. Since she did not avail of that remedy, she is in the sad state of affairs today. The time for filing an appeal had expired and the husband had waited for nearly 34 months before he contracted the second marriage-Even the application for setting aside the ex parte decree was made after the second marriage had been solemnized. That marriage could not be said to be invalid. The interest of a third party has intervened. In these circumstances, it will not be proper nor justified to uphold the order passed by the court below.