IQBAL SINGH CHEEMA Vs. ADARSH CHEEMA

JUDGEMENT

(1.) This revision is directed against an order under Sec. 24 of the Hindu Marriage Act. The applicant had filned a petition for dissolution of his marriage with the opposite-party, by a decree of divorce under Sec. 13 of the Hindu Marriage Act. The two prayers (I) for the return of certain articles detailed in the petition and (2) for the custody of a minor son have been super added in the petition. The valuation of the subject matter of the petition was put at Rs. 90,000.00 and consequently although the petition was filed in the court of the Civil Judge, Agra, which is one of the courts notified as a district court, under the Hindu Marriage Act, the revision lay-in this Court under Sec. 115 of the Code of Civil Procedure, as it stands amended in the State of Uttar Pradesh.

(2.) I may add that the revision should be said to be competent because an order under Sec. 24 is not appealable under Sec. 28 of the Hindu Marriage Act as it now stands after the Marriage Laws Amendment Act, 1976. Nonetheless a preliminary objection was raised at the hearing of the revision. The objection was based on the proviso to Sub-Section (1) of Sec. 115 of the Code of Civil Procedure as it stands substituted by U. P. Act 31 of 1978:-

(3.) The expression, or the word, 'proceeding' as used in the provisions has to be given the same meaning as in the opening part of Sub-section (1). It follows that 'the other proceeding' must be an original proceeding and not merely a proceeding in a suit or any other original proceeding. See Smt. Madhvi Sirothia Vs. Narendra Nath, (1980 A. W. C. 45) . The proceeding commneced with an application under Sec. 24 was a proceeding in the matrimonial proceeding or the matrimonial suit for divorce. The proceeding under Sec. 24was not by itself an original proceeding. It was accordingly contended, and I think rightly, that this Court is precluded from varying or revising the order sought to be revised in the present case unless. it could be shown under clause (b) of the proviso that the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.