BANI PAL Vs. ARUN KUMAR PAUL

JUDGEMENT

(1.) The City Civil Court, Calcutta by its order No. 34 dated 14.3.1989 allowed the application of the petitioner wife under section 24 of the Hindu Marriage Act and directed the husband opposite party to pay alimony pendenti lite to the petitioner wife at the rate of Rs. 1500/- per month with effect from 19.9.1987 and litigation cost of Rs. 3000/- in Matrimonial Suit No. 150 of 1987. Being aggrieved by the said order, the opposite party husband preferred revision before this court whereupon in Civil Order No. 1068 of 1989 by order dated 15th May 1998 this court dismissed the said revision petition.

(2.) With effect from 1.8.1991 Family Courts Act, 1984 came into force in West Bengal and the petitioner wife put the said award of the City Civil Court granting alimony and litigation costs into execution in Mat. Execution Case No.1 of 1995 in Family Court, Calcutta under Order 21 Rule 37 of the Code of Civil Procedure. The said court refused to grant any relief in favour of the petitioner wife on a finding that the opposite party husband has no means to pay, by order dated 69 dated 30.4.1998. It is this order of refusal to execute the award that forms the subject matter of the instant revision petition.

(3.) Under section 19 of the Family Courts Act, appeal lies from every judgment or order of Family Court, not being an interlocutory order, both on facts and on law and since an appeal lies against the impugned order, Mr. Chatterjee, learned Advocate appearing for the petitioner wife frankly conceded that no revision under section 115 of the Code of Civil Procedure lies in the instant case. He, however, prayed for conversion of the revision petition into appeal. It is submitted by Mr. Chatterjee that the time limit prescribed for filing appeal under section 19(1) of the Family Court Act is one month and the present revision petition was in fact, filed before the expiry of the said time limit. It is submitted by Mr. Chatterjee, that this court has every jurisdiction to allow a revisional application to be converted into an appeal. Mr. Chatterjee refers to a decision of the apex court reported in AIR 1970 SC page 1, Shankar v. Krishna wherein it was observed : The right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of the court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the latter. When the aid of the High Court is invoked on the revisional side it is done because it is a Superior Court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a Superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider, and larger sense.