PRITHYIRAJSINHJI MANSINGHJI Vs. BAI SHIVPRABHA KUMARI

JUDGEMENT

(1.) Mr. Thakkar, learned Advocate appearing on behalf of opponent No. 1, has raised a preliminary objection and contended that against the order passed by the learned trial Judge an appeal would be competent to the District Court and if an appeal is competent, then, contends Mr. Thakkar, a revision application would not be maintainable. The argument of Mr. Thakkar on this point briefly is that under S. 28 of the Act all decrees and orders made by the Court are expressly declared to be appealable and this being an order directing payment of interim maintenance under S. 24, it would be appealable and the appeal would lie to the District Court. In supoprt of this argument Mr. Thakkar relies on a recent judgment of this court Gangadhar Rakhamaji v. Manjula 61 Bom LR 442 : (AIR 1960 Bom 42). In that case it was held that when a Court of Civil Judge, Senior Division, notified by the State Government as having jurisdiction in respect of matters dealt with in the Act passes a decree in a petition under the Act, an appeal against the decree lies to the District Court of the district and not to the High Court. Now, that was a case where an appeal was filed to this Court against the dismissal of the husband's petition for divorce or judicial separation under the Act. The contention ofMr. Thakkar is that all orders passed by the court of Civil Judge, Senior Division, under the Act would stand on the same footing as decrees, nd appeals from such orders must lie to the District Court. In order to test the correctness of his argument, it is necessary to refer to the provisions of s. 28 of the Act which runs as follows :

(2.) The order passed by the trial Court is an order granting interim relief under S. 24 of the Act granting permanent alimony and maintennce, which the Court can pass under Section 25. such an order cannor amount to a decree as defined in S. 2 (2) of the Civil Procedure Code and, therefore, would not be appealable as decree. Mr. Thakkar concedes, and rightly, that the present order does not fall within S. 104 nor under O. 43, R. 1 of the Code. It would not be, therefore, appealable under the Civil Procedure Code. But Mr. Thakkar argues that it is appealable by virtue of S. 28 of theAct. If this argument were to be accepted, it would mea that all interlocutory orders passed by the Court in any proceding under the Act, which proceed;ing is to be regulated by the Code of Civil Procedure by virtue of s. 21 of the Act would be appealable even though such orders may not be appealable even though such orders may not be appealable under the Code itself. such a result could not have been intended by the Legislature.

(3.) In support of his contention, Mr. Thakkar has invited my attention to two rulings of the Lahore High Court. In R. C. Chamarette v. Mrs. P. E. Chamarette, AIR 1937 Lah 176, during certain proceedings under the Indian Divorce Act pending in the Court of an Additional district Judge, the Court had held that the husband's evidence relating to the illegitimacy of his two children was inadmissible. the husband appealed under S. 55 of the Indian Divorce Act. The opposite party contended that the appeal was not competent and it was held by the Lahore High Court that an appeal ly from such an order under S. 55 of the Act. This was a decision of a single judge. Now, S. 55 of the Indian Drvorce Act provides that all decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and my be appealed from under the laws, rules and orders for the time being in force. It is not necessary to refer to the provisos to this section, though the second proviso is similar to the proviso under S. 28 of the Act viz., that there shall be no appeal on the subject of costs only. It is true that the wording of S. 55 of the Indian Divorce Act is similar to the wording of S. 28 of the Act and the decision of the Lahore HighCourt would undoubtedly favour the construction which Mr. Thakkar urges should be placed on S. 28. But in deciding that an appeal lay from the order of the Additional District Judge holding the husband's evidence to be inadmissible, the learned Judge of the Lahore high Court observed as follows :