INDRAJ Vs. SHANTI

JUDGEMENT

(1.) THE appellant filed a petition under S. 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), praying for a decree for restitution of conjugal rights. This application was contested by the respondents and was dismissed by the Second Civil Judge, Meerut, Against that decree a First Appeal was preferred before the District Judge, Meerut. THE appeal has been dismissed by the Fifth Additional District Judge, Meerut on 23-11-1977. Aggrieved by these decrees the appellant has preferred a second appeal in this Court. THE appeal was presented before the Stamp Reporter on 14th March, 1978 and was returned to counsel for the appellant with a report that it was beyond time by fifty-nine days. It appears that the limitation for filing the second appeal has been computed by the Stamp Reporter on the basis that it was thirty days from the date of the decree appealed against in view of sub-s. (4) of S. 28 of the Act. THE appeal was presented before the Court with the aforesaid report on the same date and the correctness of the report of the Stamp Reporter in regard to the limitation was challenged by counsel for the appellant. THE matter was accordingly ordered to be listed for consideration of this question.

(2.) I have heard counsel for the appellant and I am of opinion that the limitation for filing a second appeal under S. 28 of the Hindu Marriage Act, 1955, would be ninety days and not thirty days. S. 28 of the Act was substituted by Act 68 of 1976. Before it was so substituted it read as follows: " Enforcement of, and appeal from, decrees and orders. All decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of the original civil jurisdiction are enforced and may be appealed from under any law for the time being in force. Provided that there shall be no appeal on the subject of costs, only." After its being substituted by Act 68 of 1976 it reads as follows:- " 28. Appeals from decrees and orders -(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-s. (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. (2) Orders made by the court in any proceeding under this Act u/s. 25 or S. 26 shall, subject to the provisions of sub-s. (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction. (3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order."