(1) This is an appeal under the Guardians and Wards Act. The appellant filed an application before the District Court claiming return of the custody of her minor children from the respondent, her husband. The parties were married in 1956. Out of this marriage, three sons and two daughters were born to the parties. She alleged that because of the quarrels and illtreatment, she had to leave the husband. She went to her father along with the children in about March, 1964. She further alleged that on September 2, 1964, the opponent forcibly removed the minor children from her custody. She made the application on November 13, 1964 for the return of the custody of the minors.
(2) The case came up for hearing on June 26, 1965. On this date, the appellant was present in Court, but her advocate was engaged in another Court, and, therefore, she could not be present when the case was called up. She refused to enter the Court in the absence of her advocate. The learned Judge started dictating the order of dismissal, and just then Mr. Pinge, her advocate, came to the Court, and still surprisingly enough, the learned Judge continued to dictate the order of dismissal. The appellant challenges the order of the learned Judge in this appeal.
(3) Mr. Sukhtankar raised a preliminary contention that this appeal is incompetent. He relies upon the decision in Mohanlal Dechar. das v. Bombay Life Assurance Co. Ltd., : AIR1950Bom355 . This case arose out of an ex parte dismissal of a suit on the Original Side of the High Court and the question that was posed before the Bench was whether an appeal lay under Clause 15 of the Letters Patent. The Court held that a dismissal of a suit under O. 9, R. 8 does not affect the merits of a case in that the rights and liabilities of the parties are not decided. It was observed that the learned Judge in such a case makes a procedural order only,. when he dismisses a suit under O. 9, R. 8, and therefore, appeal under Clause 15 of the Letters Patent does not lie, the only remedy available to the party being under O. 9, R. 9. I am asked to apply this decision to a decision made under the Guardians and Wards Act, 1890.
(4) In this connection I may consider the analogy afforded by the Civil Procedure Code. In the old Code, Act VIII of 1859, ex parte decree were dealt with by S. 119. It provided, 'no appeal shall lie from a judgment passed ex parte against a defendant who has not appeared or from a judgment against a plaintiff by default for non-appearance'. The Act X of 1877 modified he language and the above provision was dropped. Section 540 read 'Unless, where otherwise expressly provided in this Code or by any other law for the time being in force, an appeal shall lie from the decrees or from any part of the decrees, of the Courts exercising original jurisdiction, to the Courts authorised to hear appeal from decisions of those Courts'. Same words were repeated in the Code of 1882. The majority of the High Courts held that ex parte dismissals of suits or decrees were appealable. I may refer to Ramchandra v. Madhav ILR (1892) 16 Bom 23 and Ajudhia Prasad v. Bal Mukand ILR (1886) 8 All 354 . In this first case, plaintiff's suit was dismissed for his default and his appeal to the District Court was dismissed as not maintainable on the ground that the code had provided an alternative remedy. Mr. Justice Birdwood clearly held that appeal was competent and Mr. Justice Parsons said, he would like to consider the question further. In the second case, the case is of an ex parte decree against a defendant. Mr. Justice Mahmood made a detailed analysis of the various provisions and held then that an appeal would lie. He also pointed out (p. 362) that even where a suit was dismissed for default the same consideration would apply. The learned Judge in this connection particularly noticed that the open words of S. 540 of the Code were. 'Unless where otherwise expressly provided', and not 'expressly provided' Under the present Code, S. 96 providing for an appeal against decree begins as before, 'save where otherwise expressly provided'. Clearly under this section, appeals would have lain against ex parte dismissal of suit for plaintiff's default and ex parte decrees against defendants. But then by S. 2(2), while defining a decree, the Legislature excluded any adjudication from which an appeal lies as an appeal from an order, and any order for dismissal for default, which would mean that an appeal would lie only when an ex parte decree is made against the defendant, and not against a decree dismissing plaintiff's suit. The definition illustrates that even such dismissal of a suit could have been regarded as a decree but for the exception.
(5) Coming to the Guardians and Wards Act, the relevant section providing for an appeal is S. 47. The words providing for the appeal are: (c) 'under S. 25 making or refusing to make an order for the return of a ward to the custody of his guardian'. As a result of the decisions in Sheosajansingh v. Gokulsingh , and Parmanand v. The State AIR 1951 Pepsu 86 , some doubts appeal to have been raised whether the provisions of the Civil Procedure Code are applicable to proceedings under this Act. In view of the decisions of this Court, I will proceed on the assumption that it applies and the order is properly made. The words above quoted in S. 47 are sufficiently wide, in my view, to include the refusal to make the required order by dismissing the application on the ground that the applicant is absent. While construing the present section. I have not to construe either the word 'Judgment' as in Mohanlal Bechardas's case. : AIR1950Bom355 or 'decree' as in the Civil Procedure Code. Having regard to these considerations , I do not think there is any justification to extend the principle of this case to such orders under the Guardians and Wards Act.
(6) On merits nothing could be urged substantially on behalf of the respondent. Even while the learned Judge was dictating the order, the learned advocate for the appellant came to the Court, and under the circumstances, I do not think the learned Judge was justified in dismissing the application.
(7) It also appears to me that on the prior occasion when the learned Judge exercised his discretion to grant her an adjournment. he directed that she should pay Rs. 15 as costs of the adjournment to the other side. I do not see why the learned Judge should have asked the appellant to pay costs of a simple adjournment like this. After all, the Court was concerned to decide the question where the interest of the minors lay. It was the applicant who was asking for the custody of her minor children and ordinarily there could have been no reason to delay the proceedings. In my view, therefore, the order for costs was uncalled for. I accordingly set aside this part of the order also.
(8) In the result, the appeal is allowed. This is a proper case where the husband-respondent should be made to pay the costs of this appeal.
(9) Having regard to the way the matters have proceeded, I think it desirable that the dispute between the parties should be heard and decided by the learned District Judge himself. I direct that as far as possible, the case should be heard and finally decided before June 30, 1966. That writ and record will be forwarded to the lower Court before tomorrow evening.
(10) Appeal allowed.