JUDGMENT
B. Bhattacharya, J.
1. This revisional application under section 115 of the Code of Civil Procedure (‘Code”) Is at the instance of a wife and is directed against Order No. 74 dated September 16, 1998 passed by the learned Additional District Judge, 10th Court, Allpore In Miscellaneous Case No. 21 of 1997 thereby rejecting an application under section 10(2) of the Hindu Marriage Act. 1955 (“Act”).
2. Previously the petitioner filed a suit being Matrimonial Suit No. 4 of the 1996 under section 10(1) of the Act claiming Judicial separation. The said suit was decreed in favour of the petitioner on July 3, 1996.
3. On or about April 1, 1998 the petitioner filed the aforesaid application under section 10(2) of the praying for rescinding the decree for Judicial separation passed earlier in her favour on the grounds stated therein. The said application gave rise to the aforementioned Miscellaneous Case No. 21 of 1997.
4. The said miscellaneous case was opposed by the husband and on contested hearing, the learned trial Judge has dismissed the miscellaneous case thereby refusing to annual the decree for Judicial separation.
5. Being dissatisfied, the wife has filed the instant revisional application.
6. After hearing Mr. Roychowdhury appearing on behalf of the petitioner and Mr. Mukherjee on behalf of the opposite party, I am of the view that the order impugned in this application is a “decree” within the meaning of section 28 of the Act and as such is appealable and consequently this revlsional application under section 115 of the Code is not maintainable.
7. Mr. Roychowdhury appearing for the petitioner strenuously contended that an order refusing to rescind the decree for judicial separation is not a “decree” within the meaning of section 28 of the Act. According to Mr. Roychowdhury, If an application under section 10(2) of the Act is allowed thereby annulling the decree of judicial separation, such order could be said to be a decree. But, Mr. Roychowdhury proceeds, by dismissal of such an application court cannot be said to have passed any “new decree” so as to make it appealable.
8. Mr. Mukherjee appearing on behalf of the opposite party has however supported the contention of Mr. Roychowdhury as aforesaid. Mr. Mukherjee by relying upon the provision contained in section 25 of the Act submits that although the legislature has used the phrase “at the time of passing any decree” in the said section, the consistent view of almost all the High Courts Is that such an application can be entertained only when a court has granted relief under any of the provisions contained in section 9 to 13 of the Act; but where a court has dismissed the main petition under the aforesaid provisions of the Act a petition for permanent alimony cannot be entertained. By taking analogy from the above provision, Mr. Mukherjee supports the contention of Mr. Roychowdhury that an order allowing an application under section 10(2) of the Act is appellable while refusal of prayer of an applicant under the said provision will not be a decree.
9. Although there were conflicting views of different High Courts on the question of maintainability of an application for permanent alimony when a court has refused the main relief to a parry under any of the provisions contained in sections 9 to 13 of the Act, the Apex Court In case of Smt. Chand Dhatuan v. Jawaharlal Dhawan has settled the position by holding that for the purpose of section 25 of the Act, dismissal of the main petition Is not a decree so as to attract the said provision.
10. However, in paragraph 28 of the said decision the Supreme Court has in clear term affirmed the position of law that by rejecting a claim, the matrimonial court does make an appealable decree in terms of section 28 but that neither affects or disrupts a marriage.
11. Section 10(2) of the Act gives a special right to the parties to rescind a decree for Judicial separation on fulfilling the conditions mentioned therein. Therefore in a given case when a court on consideration of the materials on record decides not to countermand the decree earlier passed, such adjudication must be held to be a decree within the meaning of section 2(2) of the Code.
12. I am not at all impressed by the submissions of the learned advocates for the parties that an order allowing an application under section 10(2) of the Act will be a decree while rejection of such application will not amount to. In this connection it will not be out of place to refer to a Divisional Bench decision of this court in the case of Prafulla Ranjan Sarkar v. Saroj Ranjan Sarkar and Ors. reported in 71 CWN 548. In the said case, question was whether an order refusing to rescind an earlier order appointing a Receiver was appellable under provision of Order 43 Rule 1 of the Code. It was contended on behalf of the respondent therein that an order removing a Receiver was appealable but the one refusing to remove was not. The Division Bench at paragraph 200 of the said decision by relying upon the decision of Federal Court in the case of Rajarappan v. Madhavi Ammo. reported in AIR 1950 FC 140 repelled such contention holding that “this distinction (viz. that the order of removal and the order of refusal to remove) does not materially affect the question”.
13. At any rate, if the legislature had any such intention to make a distinction between an order allowing application under section 10(2) and the one rejecting such application, such intention would have reflected expressly in the concerned statute. In the code Itself there are various provisions manifesting such Intention of the legislature. [See Order 43 Rule (1) Sub-rules (a), (c), (d), (ja), (k), (n), (na), (t), (w)]. Such Intention is also apparent in section 8 of the Partition Act, 1893 making an order of sale under sections 2, 3 or 4 a “deemed decree” but not the rejection of such applications.
14. Therefore, for the reasons above-mentioned, I dismiss the application under section 115 of the Code as not maintainable because an appeal lies to this court against the order Impugned.
15.No order as to costs.
16. Application dismissed