BHOLA PRASAD SINGH Vs. USHA DEVI

JUDGEMENT

(1.) THIS Miscellaneous appeal has been filed against an order dated 4th October 2001, rejecting the prayer of the appellant for restitution of conjugal right u/s 9 of the Hindu Marriage Act (hereinafter, in short, to be referred to as the 'Act '). There is objection of the Stamp Reporter that since the impugned order was a decree u/s 28 of the Act, First Appeal should have been filed, instead of Miscellaneous Apepal.

(2.) HEARD on the objection of the Stamp Reporter.

(3.) THE Civil Court Rules framed by the Patna High Court under Part -ll, Rule 214 has laid down that for reliefs claimed under Sections 9, 11, 12 & 13, applications shall be filed. Rule 214(8) has stipulated that such petitions shall contain the particulars as listed therein besides the particulars mentioned under Order Vll Rule 1 of the C.P.C., which has listed particulars to be contained in a plaint to be presented before the civil court seeking relief. Rule 214 (19) has stated that the respondents of the application filed under the Act seeking a relief shall answer the petition and the particulars mentioned in Order VIM C.P.C. shall be contained in W.S. to be filed against a petition filed under the Act. The aforesaid provisions of C.P.C. and the Civil Court Rules clearly indicate that the application of divorce and restitution of conjugal rights etc. shall be in the form of a plaint and the answer to the petition shall be in the form of W.S. and the decisions rendered by the competent court shall be deemed to be a decree under Section 28 of the Act. 'Decree ' has been defined under Section 2(2) of the C.P.C. as under : "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final It shall be deemed to include the rejection of a plaint and the determination of any question under S. 47 or S. 144, but shall not include ''