NILMONI MAZUMDAR Vs. SANGHAMITRA MAZUMDAR

JUDGEMENT

(1.) The learned Counsel for the appellant had made an application for stay of the judgment in an appeal arising out of an order passed under S. 25 of the Hindu Marriage Act, 1956 (HM Act). Sub-sec. (2) of S. 28 of HM Act provides for an appeal to a Court to which the appeal lies from the Court having original jurisdiction. In this case, admittedly, appeal lies to the High Court. Section 21 of the HM Act prescribes application of Civil Procedure Code, 1908 (CPC) as far as possible. It is contended on behalf of the appellant that this appeal does not require any hearing under Order 41 Rule 11 of CPC, since it is a special right of appeal provided under the special statute. The right of appeal is available without any admission of the appeal. According to him, Order 41 Rule 11 of CPC cannot apply in respect of such an appeal.

(2.) Mr. Jyotirmoy Bhattacharyya was along with Mr. Jiban Ratan Chatterjee were requested to assist the Court on the question. The Court records its appreciation of the assistance rendered by them.

(3.) Since S. 21 of the HM Act specifically makes it clear that all proceedings subject to the provisions contained in HM Act shall be regulated, as far as may be, by CPC. There having been no procedure provided in the Act or any Rules framed thereunder including application under Order 41 Rule 11 of CPC, the application thereof cannot be excepted. At the same time, the procedure in the High Court is governed by the Appellate Side Rules (AS Rules). Even if the application, though assuming but not admitting, of CPC can be excluded, still then the application of the AS Rules cannot be excluded.