JUDGMENT
(1) In Hindu Marriage Miscellaneous Case No. 145 of 1965, the appellant made an application under section 10 of the Hindu Marriage Act, 1955 (hereinafter called ‘the Act’) for the grant of a decree of judicial separation against the respondent In these proceedings the respondent made an application under section 24 of the Act seeking interim maintenance pendente lite at Rupees 500/- p.m. and Rs.500/- towards expenses of the litigation. This petition was objected to by the petitioner and after recording evidence, the Civil Judge made an Order on 4th December 1956 directing the petitioner to pay an interim maintenance of Rs. 300/- p.m. and Rs. 500/- towards the expenses of the litigation. The petitioner had alleged that Respondent was getting a rent of Rs.50/- from one of properties in her possession. The Civil Judge directed the deduction of a sum of Rs. 60/- from the sum of Rs.300/- provided the petitioner did not prevent the respondent from getting the said rent. This is admittedly an interlocutory order passed under Section 24 of the Act. It is against this order, the petitioner husband has preferred the above Miscellaneous First Appeal No. 307 of 1965 under S. 28 of the Act in this Court.
(2) Sri H. R. Venkataramaniah, the learned counsel appearing for respondent raised two preliminary objections relating to the maintainability of the appeal. His first contention is that the order passed under Section 24 of the Act not being a decree but only an order, no appeal lies under section 28 of the Act. He invites my attention to the provisions of the Act, under which the petitioner has made an application before the trial Court for judicial separation as also to the provisionsof Sections 9,11,12 and 13 of the act. In all these Sections, provision is made for a decree being passed. He further invites my attention to Section 21 of the Act which is as follows:
“21. Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure 1908.”
A reference is them made to section 28 of the Act which reads as follows:
“28. All decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decree and orders of the court made in the exercise of its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force.”
It is submitted that it is the latter part of section 28 that permits appeals being filed from all decrees and orders under any law for the time being in force. It is contended that there being no other law providing for any appeal, against the decrees and orders passed under the Act, it is only the Code of Civil Procedure that should be looked into as the law for the time being in force to find out if such decrees or orders as are passed under the Act may be appealed from.
Reading section 21, in support of his contention, Sri Venkataramaniah, the learned counsel for the respondent submits that under Sections 96 and 100 of the Code of Civil Procedure, First and Second Appeals respectively are provided for, from decrees and as against orders, it is under section 104 read with order 43 of the Code of Civil Procedure that appeals can be preferred. No appeals having been provided for in C.P. C. against the order passed under the Act, it is submitted that no appeal can lie from orders passed under the Act. In support of his contention he relies upon several decisions. He has also brought to my notice some decisions taking a contrary view. I am inclined to agree with those decisions which support the preliminary objections raised by the learned counsel for the respondent. In , Saraswathi v. Krishna Murthy an appeal was preferred against the order refusing to grant interim maintenance under Section 24 of the Act. A preliminary objection was raised questioning the maintainability of the appeal. Their Lordships after referring to the provisions of section 28 and section 21 of the Act and the provisions of section 104 and O. 43 of the Code of Civil Procedure have come to the conclusion that an appeal against an order refusing to grant interim maintenance under section 24 of the Act is not maintainable. They took the view that by reason of provisions of sections 21 and 28 of the Act, provisions of the Code of Civil Procedure are made applicable subject to other provisions of the Act and the rules made by the High Court. There are no provisions with regard to right of appeal under the Act nor have any rules been framed in the matter. It is the provisions of the Code of Civil Procedure that can apply and an order under section 24 is not made appealable under the provisions of the same and therefore they upheld the preliminary objection that the appeal is not maintainable.
(3) Next my attention was invited to the decision of AIR 1960 Bom 315. Prithyrajsingji v. Bai Shivaprabhakumari. This is a converse case being a revision application against the order passed under section 24 of the Hindu Marriage Act, 1955 and a preliminary objection was raised that an appeal being provided for under section 28 of the Act, a revision petition is not maintainable. The contention advanced in support of the preliminary objection in that case was that the appeal is provided under Section 28 of the Act and the procedure governing that appeal will be procedure laid down under the Code of Civil Procedure and “the law for the time being in force” was the concerned Civil Courts Act. The Bombay High Court took the view that the words “under any law for the time being in force” apply to both the right of appeal and the procedure relating to it.
The argument of Sri Shekara Shetty, learned counsel appearing for the appellant here is the same as that advanced before the Bombay High Court. Analysing section 28 it is seen that there are two parts in it. One provides for execution of the decrees and orders and the other provides for appeals being preferred against such decrees and orders. In the first part, all decrees and orders made by the Court in proceedings under the Act are to be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction by the Civil Courts, obviously referring to the Code of Civil Procedure. The second part provides that the decrees and orders may be appealed from under any law for the time being in force. It appears to me that an appeal can lie from the order passed by the Court under the Act, it being determined by the provisions of the Code of Civil Procedure. It is also to be appreciated that the provison under Section 28 is an exception in regard to costs only. The wording of section 21 is also significant in that it says that the proceedings under the Act shall be regulated as far as may be, by the Code of Civil Procedure. Therefore reading S. 21 along with the provisions of section 28, it would be reasonable to hold that the provisions for preferring appeals is regulated by the Code of Civil Procedure. Therefore it follows that the contention of the petitioner that section 28 provides for appeal against every order made by the Court in the proceedings under the Act cannot be upheld. It is only when the decrees come within the provisions of the Code of Civil Procedure prescribing for appeals being filed that appeals can be filed Wherever the Code of Civil procedure has not provided for appeals being filled against interlocutory orders made under the Act, no appeal can lie. In this connection, I may refer to the decision of our High Court reported in AIR 1962 Mys. 172 Dhulappa v. Krishnabai, where while discussing the maintainability of the Second Appeal under S. 100 of the Code of Civil Procedure in respect of an order passed under S. 28 (sic) have been analysed. It is observed as follows:
“That section deals with two topics, the enforcement of the decisions of the Court under the Act and the appealability of such decisions. In regard to the former topic the language clearly indicates that the decisions of the Court under the Act are to be enforced in like manner as the decisions of the Court under the Act are to be enforced in like manner as the decisions of the Court made in the exercise of the original civil jurisdiction are enforced. In my opinion this similarity in the matter of enforcement between the decisions of the Court under the Act and the decisions of the Court in the exercise of its ordinary original civil jurisdiction is also the basis for ascertaining the nature and extent of the right of appeal provided against the decisions made under the Act. The latter part of the Section dealing with appealability must therefore be taken to read as follows:
‘All decrees and order made by the Court in any proceeding under this Act may be appealed from in like manner as the decrees and orders of the Court made in the exercise of the original civil jurisdiction may be appealed from under any law for the time being force.'”
It is further observed:
“This would mean that such of the decisions under the Act as are called decrees by the Act itself shall be appealable in like manner as the decrees of the Court in Civil Suits are appealable and that such of the decisions under the Act as are referred to as orders in the Act shall be appealable in like manner as orders in suits or other original proceedings. In this view the purpose of the statue in describing certain of the decisions as decrees and certain others as orders becomes quite apparent.”
With great respect I entirely agree with the above observations. The other decisions that I have referred to above support the view that unless an appeal is provided under any law for the time being in force against orders passed under the Act, no appeal can lie. It is undisputed in this case that there is no provision under the Code of Civil Procedure or under any other law providing for appeals against the orders passed in the Act. Therefore the appellant cannot rely on the provisions of section 28 to file this appeal.
The view taken in is that appeal lies against the order of the District Judge under the Act. While referring to Section 28 they observe that the contention that the appealability will depend on the law for the time being in force and does not result directly from the section itself is not acceptable. They take the view that it is unreasonable to hold the legislature guilty of leaving the matter of appealability entirely at large, as it would be if appealability was to depend on any law for the time being in force. They were of the view that it is reasonable to think that when the legislature took upon itself the task of making provisions as regards appeals, it intended to make definite provisions. They further took the view that the words “under any law for the time being in force” in section 28 of the Act were added by the Legislature to indicate the forum where the appeal would lie.
This is the view taken by Madras High Court in . D. S. Seshadri v. Jayalakshmi. In this case the order that came for consideration was one granting permanent alimony to the respondent-wife therein under section 25 of the Act. They referred to the decision of the Andhra Pradesh High Court in as also the decision of the Madras High Court in C.R.P. 692 of 1958 (Mad) which follows the Andhra Pradesh decision but they observed that they are unable to share the view taken in the above two cases. They expressed the opinion that Section 28 in terms confers a right of appeal against all decrees and orders passed by the Court in any proceeding under the Act. They referred to Section 9 and section 13 where the word “decree” is used and said that there can be no doubt that the legislature intended to give a right of appeal against all such orders, therefore, the appeals are maintainable against the relief granted under the provisions of sections 9 and 13 of the Act. Section 28 confers a right of appeal and it also indicates against which decrees or orders the appeal will lie. Madras High Court refers to the decision in Smt. Shobhana v. Amar Kanta, and , Harilal v. Lilavathi; but they ultimately observe that it is unnecessary for them to pursue the matter further as the question with which they were concerned related only to the order under Section 25 of the Act, which in their opinion was similar to the decree awarding maintenance I am unable to accept the view taken in the Calcutta decision that Section 28 leaves the question of appealability entirely at large. It is specific and indicates that the provisions of the Code of Civil Procedure govern appealability.
(4) Taking into consideration the several decisions that I have referred to above. I respectfully agree with the view taken by the Bombay and Andhra Pradesh High Courts in their decisions referred to above and uphold the preliminary objection. The result is that the appeal is not maintainable.
(5) The next objection raised relates to the forum. Sri Venkataramaniah, learned counsel for the respondent invites my attention to section 19 of the Mysore Civil Courts Act which is as follows:
“Appeals from the decrees and orders passed by a Civil Judge in original suits and proceedings of a civil nature, shall, when such appeals are allowed by law, lie-
(1) to the District Court, when the amount or value of the subject matter of the original suit or proceeding is less than twenty thousand rupees;
(2) to the High Court, in other cases.” It is not disputed in this case that the value of proceedings for relief of judicial separation under section 10 of the Act cannot be valued and therefore the test prescribed under section 19(1) cannot be applied to this case and therefore it would come in the category of cases coming under Sub-clause (2) i.e., “in other cases”. If this is so, the appeal would lie to the High Court if such appeal is maintainable in law. In this connection my attention was drawn to a decision reported in AIR 1960 Mys 292, Mallappa v. Mallava. The proceedings therein also arose under the Hindu Marriage Act but regarding the appeal, the forum of appeal was governed by the Bombay Civil Courts Act Section 8 of the Bombay Civil Courts Act, 1869 states that the District Court shall be the Court of Appeal from all decrees and orders passed by the subordinate Courts from which an appeal lies under only law for the time being in force.
There is a distinction between the provisions of section 19 of the Act and the Bombay Civil Courts Act, referred to in the said judgment. In view of the provisions of S. 19 of the Civil Courts Act, as I mentioned earlier, the appeal if maintainable, lies in the High Court.
(6) As a consequence of the view I have taken on the first preliminary objection, this appeal is not maintainable. The learned counsel for the appellant prays that he may be permitted to convert this Civil Miscellaneous First Appeal into a Civil Revision Petition. The learned counsel for the respondent has no objection for the conversion. Therefore the appellant is permitted to convert this Miscellaneous First Appeal into a Civil Revision Petition and after this conversion the petition will be registered as C. R. P. and will be posted for admission. There will be no order as to costs.
(7) Appeal Dismissed.
