R P MUNISWAMAPPA Vs. ERAMMA

JUDGEMENT

(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:

(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: