JYOTI SINHA Vs. SAMIR KUMAR SRI ARBIND KUMAR

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India has been filed by the petitioner for setting aside part of the order dated 20.01.2017 passed in Misc. Case No. 18 of 2016 by the learned Principal Judge, Family Court, Khagaria whereby he has disposed of the misc. application filed by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure (for short 'CPC') for recall of the ex parte decree dated 20.01.2015 passed in Misc. Case No. 7 of 2014 wherein opposite party herein had prayed to deliver the legitimate custody of Omja Verma (daughter) in his favour.

(2.) Learned counsel for opposite party no. 1 has raised a preliminary objection regarding the maintainability of the present application. He contended that the order impugned is a final order passed on an application filed under Order 9 Rule 13 of the CPC by the Family Court. The said order is appeable under Section 19 of the Family Courts Act.

(3.) Learned counsel for the petitioner, however, submitted that without following any enquiry over the application of misc. case, the same has been dropped. No witness was examined and cross-examined. He contended that since the application under Order 9 Rule 13 of the CPC wad disposed of without exhausting any proceeding, an application under Article 227 of the Constitution of India would be maintainable.