KADIA HARILAL PURSHOTTAM Vs. KADIA LILAVATI GOKULDAS

JUDGEMENT

(1.) Regards the other applicants also it is contended that admittedly gaming was not going on at the time of the raid and that therefore the other applicants cannot be held to be guilty. For a conviction under sec. 5 of the Act it is not necessary that the person should be actually found gaming. A person who is present in a house for the purpose of gaming would be guilty under sec. 5 even though none may be actually gaming at the time of the raid. In view of the presumption under sec. 7 however a person found in the house room or place in question is presumed unless the contrary is proved to be present therein for the purpose of gaming although no gaming was actually seen at the time of the said. Sec. 7 even makes it clear that the presumption can be drawn although gaming may not be actually seen. There is therefore no merit in the contention of the learned counsel for the applicants. The revision application is therefore dismissed.K. T. DESAI C. J. This appeal raises important questions relating to The construction of some of the provisions of the Hindu Marriage Act 1955 a piece of legislation which is not noted for artistic or accurate draftsmanship. The appellant in this case filed a petition in the Court of the District Judge Halar for restitution of conjugal rights against the respondent. On 31/01/1957 the said petition was dismissed. From the order of dismissal an appeal was filed in the High Court That appeal was dismissed. On 11/04/1957 the respondent made an application purporting to do so under the provisions contained in section 25 of the Hindu Marriage Act 1955 for permanent alimony. That application was heard by the learned District Judge Halar who passed an order awarding a sum of Rs. 40/per month as and by way of permanent alimony to the respondent from the date of the application. the appellant has filed this appeal from that order.

(2.) Mr. Chhaya the learned advocate for the respondent has raised a preliminary objection as regards the maintainability of this appeal. He contends that no appeal lies against the order made as aforesaid on the application of the respondent. The provisions relating to appeals are to be found in section 28 of the Hindu Marriage Act 1955 That section runs as under :

(3.) Mr. Chhaya contends that the order granting Rs. 40/per month by way of permanent alimony is an order within the meaning of this section. He urges that an appeal can lie from such order only if such appeal is provided under any law for the time being in force. According to his submission the law referred to in this connection is the Code of Civil Procedure 1908 He says that the provisions of the Code relating to appeals are to be found in sections 96 and 104 and Order 43 rule 1. Sec. 96 provides for appeals from original decrees. Section 104 and Order 43 Rule 1 provide for appeals from orders. He argues that the provisions of section 104 and Order 43 rule 1 are inapplicable to the order in question passed by the District Judge. Halar. Section 104 in terms provides that an appeal shall lie from the orders therein mentioned and that save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other orders. An order granting permanent alimony is not one of the orders specified in section 104. Order 43 rule 1 provides for an appeal from the orders therein mentioned. An order awarding permanent alimony is not one of the orders mentioned in Order 43 He relied upon the definition of the term decree given in the Civil Procedure Code in order to show that the order in question does not amount to a decree. Section 2 sub-section (2) provides that unless there is anything repugnant in the subject or context the term decree means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 of section 144 but is not to include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. Tile expression order has been defined in section 2 sub-section (14) to mean the formal expression of any decision of a Civil Court which is not a decree. He argues that the order passed by the District Judge Halar awarding permanent alimony does not amount to a decree within the meaning of section 2 sub-section (2) of the Civil Procedure Code. He says that this order was passed on an application that was made after the suit for restitution of conjugal rights was disposed of. He submits that the order made is an order within the meaning of section 2 sub-section (14) and as no appeal is provided from such an order under the provisions of the Code of Civil Procedure no appeal lies therefrom and that the appeal that is filed is incompetent in law. He relies upon a decision of a single Judge of the Bombay High Court reported in 62 Bom. L. R. Page 47 (Prithvirajsinhji Mansinghji v. Bai Shivprabhakumari). In that case it was held that the words may be appealed from under any law for the time being in force refer to the appeals provided for under the Code of Civil Procedure. It was there held that section 28 of the Hindu Marriage Act 1955 did not provide any appeal against every order made by a Court in proceedings under the Act but against only such of them as fall within the definition of the term decree as defined in section 2 sub-section (2) of the Civil Procedure Code 1508 or with regard to which an appeal is provided under the Code. In that case the contention that the words under any law for the time being h force wore applicable merely to the procedure in cases where an appeal lay was negatived. He also relied upon a decision of the Andhra High Court reported in A.I.R. 1960 Andhra page 30 (Bhamidipati Saraswati v. Bhamidipati Krishna Murthy). In that case a Division Bench of that Court held that section 28 by itself did not confer any right of appeal and that the words may be appealed from under any law for the time being in force conveyed the idea that an appeal could be filed against decrees and orders if there was provision therefore under any law and that one had to fall back on the Civil Procedure Code in this connection. In that case the Court was dealing with an appeal from an order refusing to grant interim maintenance under section 24 of the Hindu Marriage Act. The Court held that such an order under sec. 24 did not fall within the ambit either of section 104 or Order 43 and that no appeal lay therefrom.