MEERABAI Vs. ASHOK KUMAR

JUDGEMENT

(1.) This Second Appeal by the wife is directed against the decree for restitution of conjugal rights passed against her by the Extra Assistant Judge, Akola, in Hindu Marriage Petition No. 128 of 1981 on 19th Oct., 1981 and confirmed by the Joint Judge, Akola in Civil Appeal No. 532 of 1981, decided on 23rd Jan., 1984.

(2.) Shri Mehadia, the learned counsel for the appellant urged that in view of the decision of this Court in Madhavi Madhukar Kulkarni Vs. Madhukar Ramachandra Kulkarni (1984 Maharashtra Law Journal 34) it was not open for the District Court to entertain an appeal from the Judgment of the Assistant Judge, because when the decree was passed by the Assistant Judge in Hindu Marriage Petition, the Assistant Judge acts as a part and parcel of the District Court and so the appeal cannot be presented to the District Court itself. It is obvious that the first appeal was decided by the learned Joint District Judge without he being competent to hear the appeal and the appellate decree will, therefore, have to he set aside. It follows that the appeal should have been filed in the High Court and the only course that left open is to direct the return of the memo of appeal presented before the District Court to the appellant for presentation to the proper Court.

(3.) In the result, the second appeal is allowed and the decree passed by the Joint Judge in appeal is set aside. The Office is directed to return the memo of appeal filed in the First Appellate Court to Shri Mehadia for being presented to this Court, within seven days. There will be no order as to costs of this appeal and the costs incurred in appeal before the District Court. Second appeal allowed.