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Dhulappa Shivarai Molke Vs. Krishnabai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal
Judge
Reported inAIR1962Kant172; AIR1962Mys172
ActsHindu Marriage Act, 1955 - Sections 13 and 28; Code of Civil Procedure (CPC), 1908 - Sections 96 and 100
AppellantDhulappa Shivarai Molke
RespondentKrishnabai
Advocates:S.V. Mahajan, Adv.
Excerpt:
.....as well as of fact, a second appeal or an appeal against an appellate decree can be sustained only on one or other of the grounds set out in section 100 of the code of civil procedure......do not strictly fall within the definition of a 'decree' contained in clause 2 of section 2 of the code of civil procedure but could only be orders as defined in clause 14 of the same section . there could be two appeals under ss . 96 and 100 code of civil procedure only. in the case of decrees as defined by the code. so far as orders are concerned, there could be only one appeal under section 104 of the code if an appeal against such orders is expressly provided either by the code or by any law for the time being in force, and no second appeal lies against an appellate order. such being the clear effect of the relevant provisions of the code of civil procedure as to appeals, the use of the term 'decree' to describe the final decisions in original proceedings under section 9, 10, 11, 12.....
Judgment:

(1) In these three matters pending examination before being admitted to register, the Appeal Examiner has raised the question whether the Second Appeals sought to be filed are maintainable.

(2) The original proceedings out of which these matter arise were petitions for divorce filed under Section 13 of the Hindu Marriage Act ( Central Act No. 25 of 1955) before the Civil Judge, Senior Division, Belgaum. After the conclusion of those proceedings , there were appeals under Section 28 of the Act presented to the District Court. The proposed Second Appeal are directed against the decisions of the appellate Court.

(3) The appellants claim that the Second Appeals are maintainable under Section 28 of the Hindu Marriage Act read with Section 28 of the Hindu Marriages Act reads as follows :

' All decrees and orders made by the Court in any proceedings under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force. Provided that there shall be no appeal on the subject of costs only.'

(4) Though the right of appeal is thus expressly conferred by this Section, a complete idea of the nature and extent of that right can be formed only by a reference to the law for the time being in force referred to in the section itself. Apart from minor details regarding the from

and procedure , the principal details which are to be gathered to from a complete idea of the right of appeal are the forum of appeal, the question whether there is to be only one appeal or two appeals and the grounds on which such appeal or appeals may be preferred.

(5)On the question of forum, there is already a decision of a bench of this Court reported in Mallava, 1960 Mys LJ 713 : (AIR 1960 Mys 292) in which it has been held that the court of the Civil Judge, Senior Division which, by virtue of a notification under Section 3(b) of the Hindu Marriage act, has jurisdiction to entertain the original proceedings under the Act, does not become a District Court for appeal purposes or cease to be Court subject to the appellate jurisdiction of a District Court and that, therefore an appeal against the decision of a Civil Judge, Senior Division , in such matters should be preferred to the District Court and not to the High Court by virtue of the Bombay Civil Court Act of 1869.

(6) That Section 28 of the Act confers a right of preferring at least on appeal is not open to doubt. The doubt as to whether a Second Appeal also lies has arisen by reason of the fact that all original proceedings under the Act under sections 9, 10, 11, 12, or 13 are, according to the express words used in those sections required to be commenced by the presentation of a petition. Under section 20, every such petition is required to be verified in the manner required by law for the verification of plaints. The effect of these provisions is that though the proceedings may be in the nature of a suit, they are certainly not suits. Hence, the final adjudication's in those proceedings do not strictly fall within the definition of a 'decree' contained in Clause 2 of Section 2 of the Code of Civil Procedure but could only be orders as defined in Clause 14 of the same section . There could be two appeals under Ss . 96 and 100 Code of Civil Procedure only. In the case of decrees as defined by the Code. So far as orders are concerned, there could be only one appeal under Section 104 of the code if an appeal against such orders is expressly provided either by the Code or by any law for the time being in force, and no Second Appeal lies against an appellate order.

Such being the clear effect of the relevant provisions of the Code of Civil Procedure as to appeals, the use of the term 'decree' to describe the final decisions in original proceedings under Section 9, 10, 11, 12 and 13 of the Hindu Marriage Act and the reference to decisions on interlocutory or incidental matters as orders in Ss. 24, 25 and 26 of the same act dealing with the subjects of alimony and custody of children would seem to be purposeless. The question is whether one could say that this deliberate choice of nomenclature in the Statute can be taken to be without any purpose whatever. It seems to me that there is a deliberate purpose underlying the choice of this nomenclature as would be apparent on a reading of S. 23 of that Act.

(7) That section deals with two topics, the enforcement of the decisions of the Court under the Act and the appealability of such decisions. In regard to the former topic the language clearly indicates that the decisions of the Court under the Act are to be enforced in like manner as the decisions of the Court made in the exercise of the original civil jurisdiction are enforced. In Mysore opinion, this similarity in the manner of enforcement between the decisions of the Court under the Act and the decisions of the Court in the exercise of its ordinary original civil nature and extent of the right of appeal provided against the decisions made under the Act. The latter part of the section dealing with appealability must therefore be taken to read as follows:

'All decrees and orders made by the Court in any proceeding under this Act may be appealed from in like manner as the decrees and orders of the Court made in the exercise of the original civil jurisdiction may be appealed from under any law for the time being in force .'

This would mean that such of the decisions under the Act as are called decrees by the Act itself shall be appeal able in like manner as the decrees of the Court in civil suits are appeal able and that such of the decisions under the Act shall be appeal able in like manner as orders in suits or other original proceedings. In this view the purpose of the of the Statute in describing certain others as others becomes quite apparent.

(8) Because the decrees under the Act are appeal able in the same manner as decrees in original suits are appeal able under the Code of Civil Procedure, the grounds on which a First Appeal and a Second Appeal may be sustained against the decrees under the Act must also be respectively through grounds on which a First Appeal and a Second Appeal against a decree in a suit may be sustained under the Code of Civil Procedure. Hence though an appeal against the original decree under the Act may be preferred both on ground of law as well as of fact, a Second Appeal or an appeal against an appellate decree can be sustained only on one or other of the grounds set out in section 100 of the Code of Civil Procedure.

(9) The final decision in the original proceedings out of which the three matters now before me arise are expressly described as decrees in section 13 of the Act. The parties therefore are entitled not only to present an appeal under Section 28 of the Act read with Section 96 of the Code but also to the right of presenting a further appeal against the decree passed on appeal under Section 28 of the Act read with section 100 of the Code on any of the grounds mentioned in the latter.

(10) These appeals are, therefore, competent and maintainable.

(11) As these appeals become maintainable because under the provisions of the special enactment, the Hindu Marriage Act, the decisions are appeal able as if they are decrees, these appeals will have to be registered as Miscellaneous Appeals under Chapter VI Rule 1 (3) of the High Court Rules. But because the right of appeal is governed by the conditions or restrictions contained in Section 100 of the Code of Civil Procedure the Registrar does not have the power to admit the same. He should post them for admission before an appropriate Bench under Chapter IV, Rule 1 (5) (c) of the High Court Rules.

(12) These appeals will therefore be registered as Miscellaneous Appeals and proceeded with in accordance with the law and rules applicable to the same.

(13) Appeals held maintainable.


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