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Kode Kutumab Rao Vs. Kode Sesharatnamamba - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 94 of 1966
Judge
Reported inAIR1967AP323
ActsHindu Marriage Act, 1955 - Sections 21, 24 and 28
AppellantKode Kutumab Rao
RespondentKode Sesharatnamamba
Appellant AdvocateB. Bheemaraju, Adv.
Respondent AdvocateK.B. Krishnamurty, Adv.
Excerpt:
family - right of appeal - sections 21, 24 and 28 of hindu marriage act, 1955 - whether order passed under section 24 appealable - section 28 provides right of appeal and enforcement thereof made subject to laws in force relevant thereto - held, order passed under section 24 appealable. - - such a literal construction opposed to the manifest intention of the legislature, ought not to prevail when there are words sufficiently flexible to admit of some other construction by which the intention will be better effectuated. it was, submitted before that bench that in certain cases, appeals were actually preferred with success against orders under sec 24 in the high courts of bombay and andhra pradesh. 28. under the first part, all decrees and orders made by the court in any proceeding.....kumarayya, j.(1) the question referred to this full bench for its decision is: 'whether an order under section 24 of the hindu marriage act allowing or rejecting an application for maintenance pendent lite, is appealable?'(2) a division bench of this court in saraswathi v. krishnamurthy, : air1960ap30 , has no doubt expressed its considered view on this point. that view has been shared by the high courts of bombay and jammu and kashmir, but not most of the other high courts of india. even so conflicting decisions are still to be noticed in the same high courts in certain cases and on certain aspects of the matter. all this because of the second part of section 28 of the hindu marriage act (act xxv of 1955). the inartistic draftsmanship has created real difficulty in determining the true.....
Judgment:

Kumarayya, J.

(1) The question referred to this Full Bench for its decision is: 'Whether an order under Section 24 of the Hindu Marriage Act allowing or rejecting an application for maintenance pendent lite, is appealable?'

(2) A Division Bench of this Court in Saraswathi v. Krishnamurthy, : AIR1960AP30 , has no doubt expressed its considered view on this point. That view has been shared by the High Courts of Bombay and Jammu and Kashmir, but not most of the other High Courts of India. Even so conflicting decisions are still to be noticed in the same High Courts in certain cases and on certain aspects of the matter. All this because of the second part of Section 28 of the Hindu Marriage Act (Act XXV of 1955). The inartistic draftsmanship has created real difficulty in determining the true import of that part of the provision. The rules of construction shall have then to regulate its meaning consistent with the intention of the Legislature. But that is not so easy a task and must invariably lead to some conflict of views.

(3) The decision in : AIR1960AP30 (supra) proceeded on essentially a strict literal construction of the second part of the Section. As against this the different note struck by the other High Courts has resulted from the application of the rule of liberal and beneficial construction. According to them a strict literal construction as sought to be put on that part of the Section does not accord with the intention of the Legislature manifest from the statute. It leads to some absurdity, repugnancy and inconsistency. Such a literal construction opposed to the manifest intention of the Legislature, ought not to prevail when there are words sufficiently flexible to admit of some other construction by which the intention will be better effectuated.

(4) In this state of matters, we first propose to take up each category of cases. Then after expressing our opinion on the meaning of that part of the provision we intend to answer the question referred to.

(5) There are of course certain cases of other High Courts which have earlier expressed the same view, but we propose to start with : AIR1960AP30 (supra), and then consider the cases which preceded that decision and followed thereafter. The case in : AIR1960AP30 (supra), related to an order refusing to grant interim maintenance under Section 24 of the Hindu Marriage Act (hereinafter referred to as 'The Act'). The question was whether that was an appealable order. It necessarily turned upon the construction of the second part of Section 28 of the Act for that was the only express provision in the Act in relation to appeals. On a consideration of that provision. Chandra Reddy, C. J. Was of the view that the section by itself does not confer any right of appeal. The crucial expression 'may be appealed from under any law for the time being in force' used in relation to all decrees and orders made in any proceeding under the Act. In the opinion of the learned Chief Justice, conveyed the idea that an appeal could be filed against decrees and orders only if there is any provision for such appeals under any law for the time being in force. In that view of the matter, he proceeded to consider whether there is any law which gives a right of appeal against the decrees and orders passed under the Act. There was no specific reference in the enactment to any such other law. The clue to the solution in his opinion lay then in Section 21 of the enactment, which is to the following effect:

'Section 21 : Application of Act V of 1908

'Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated as far as may be, by the Code of Civil Procedure, 1908.'

The learned Chief Justice then proceeded to consider whether C.P.C. gave any right of appeal against orders passed under this Act as that right according to him was not conferred by provisions of the Act or the rules made by the High Court. Section 104 and Order 43, C.P.C. were the only relevant provisions therein. The order under Sec. 24 of Act 25 of 1955 did not fall in any of the said provisions. On that basis, it was held that there was no right of appeal against the orders passed under Sec. 24 of the Act. It was, submitted before that bench that in certain cases, appeals were actually preferred with success against orders under Sec 24 in the High Courts of Bombay and Andhra Pradesh. The Bench held that reference to the said cases was of no avail as the decision in Smt. Kamala v. Shama Rupchand, : AIR1958Bom466 , did not turn upon the contention as raised in the case before them and the case of Annapurnamma v. Ramakrishna Sastri, : AIR1959AP49 , was distinguishable. The passage in Mulla's Principles of Hindu Law occurring at page 890, which expressed a different view also did not merit acceptance as it contained no discussion on that aspect of the matter. Thus it would appear that the decision in the case proceeded on the basis that Sec 28 does not by itself confer a right of appeal but merely declares that an appeal against decrees or orders under the Act will lie only if any law for the time being in force provides for the same, and that as there is no provision for appeals against such orders in any other law including the C.P.C. and the rules made by the High Court, the orders passed under the Act are not appealable. The same was the view expressed by Ramaswami, J. of the Madras High Court in C.R.P. No. 692 of 1958 (S.R. No. 4968 of 1958).

(6) In Gopendra Nath v. Prativa Rani, : AIR1962Cal455 a single Judge of the Calcutta High Court likewise construed Sec 28 as containing in itself no provision for making the decisions appealable under the Act because all that it says is that the decree and orders under the Act may be appealed from under any law for the time being in force. Therefore, for a right of appeal against a decree or order under the Act, one has to look to law other than the Hindu Marriage Act itself. The object of the proviso according to the learned Judge is to restrict the right of appeal against order of cost even if it is permitted by any other law. It was held that there is no right of appeal against an order under Sec 24 as neither Civil Procedure Code, nor the rules made by the High Court provide for the same. This decision it must be remembered, is in conflict with the dictum in Sm. Sobhana Sen v. Amar Kanta Sen, : AIR1959Cal455 , of the Division Bench of that Court and also the decision in Sm. Anita v. Birendra Chandra, : AIR1962Cal88 , of a single Judge of the same Court.

(7) Gokhale, J. of the Bombay High Court took a similar view of the provision in Prithvirajsinhji v. Shivprabha Kumari, AIR 1960 Bom 315. While construing Sec. 28, the learned Judge observed thus:

'The words 'under any law for the time being in force' apply obviously to both the parts of S. 28. Under the first part, all decrees and orders made by the Court in any proceeding under the Act are to be enforced in like manner as the decrees and orders of the Courts made in exercise of the original civil jurisdiction are enforced under any law for the time being in force and that has obviously a reference to the Code of Civil Procedure. The procedure to be applied in enforcing the decrees and orders made by the Court under the Act is to be the procedure relating to the execution of decrees and orders contained in the Code of Civil Procedure. If that be so, in my judgment, the question whether an appeal lies from an order passed by the Court under the Act must be also determined by the provisions of the Code of Civil Procedure. The proviso to Sec. 28 says that there shall be no appeal on the subject of costs only. To that extent S. 28 provides an exception, and against an order of costs only no appeal will be competent.'

Referring to the opening words 'All decrees and orders' in Sec. 28 the learned Judge observed that it is not every order passed under the Act that is appealable but only such orders as come within the meaning of S. 2(2), C.P.C. or for which appeal is provided in the Civil Procedure Code. The order under Sec. 24 being an interim order is not appealable. The learned Judge distinguished Gangadhar Rakhamaji v. Manjulal (AIR 1960 Bom 42), on the ground that it referred to a decree and not an order and the decree was appealable under the provisions of the Civil Procedure Code. Two decisions of the Lahore High Court were brought to the notice of the learned Judge. They are (1) R. C. Chamarette v. Mrs. P. R. Chamarette, AIR 1937 Lah 176 and Millicans v. Millicans, AIR 1937 Lah 862. These decisions turned on the construction of Sec. 55 of the Indian Divorce Act which was in pari materia with the provisions of Sec. 28 of the Act. In both these decisions, it was held that Sec. 55 of the Indian Divorce Act per se did confer a right of appeal, against decrees and orders passed under the Act. The learned Judge, referred to the distinction drawn in the first mentioned case between interim and final orders, found himself unable to subscribe to the view expressed, for in case if is held that an appeal lies under Sec. 55 of the Act itself, it must necessarily mean that all orders passed under Sec 55 would be appealable and such a distinction between an order and order could not be justified. As regards the second decision, the learned Judge observed that though this decision was undoubtedly in favour of the contention that there was a right of appeal against all decrees and orders, he (the learned Judge) was unable to accept the same in view of the fact that the attention of the Judge who decided the case was not drawn to Sec 45 of the Divorce Act which was in pari Materia with Sec. 21 of the Hindu Marriage Act. Referring to the decision in : AIR1958Bom466 , the learned Judge observed that though no doubt an appeal was entertained against the order of the trial Court dismissing the application for interim maintenance filed by the wife, the question whether an appeal was competent of not was neither raised nor considered in that case and so that cannot be an authority on the point Reference was also made to : AIR1959AP49 but it was distinguished in a similar manner. The observation of K. Subba Rao, C. J. (As he then was) in relation to Sec. 28 as conferring a right of appeal by reference to any law was stressed upon as a point in support of the view taken by the learned Judge.

(8) The High Court of Jammu and Kashmir in Mohas Rani v. Mohan Lal AIR 1965 J & K 88, shared the view expressed by this Court in : AIR1960AP30 , on the same line of reasoning. It disagreed with the interpretation put on Sec. 28 in Smt. Snehalata v. Jagadish Danasana, : AIR1964Ori122 , and : AIR1959Cal455 , and Harilal Purushottam v. Lilavati Gokaldas. : AIR1961Guj202 . These are all the various cases which represent one view. The cases which represent one view. The cases which struck a different note and held all decrees and final orders passed in proceedings under the Hindu Marriage Act are appealable, are the following from Calcutta. Madhya Pradesh, Madras, Bombay, Punjab, Orissa, Himachal Pradesh, Gujarat and mysore:

Calcutta:

1. : AIR1959Cal455 Division Bench

2. : AIR1962Cal88 Single Bench

3. Pratima v. Kamal Kumar (DB) (1964) 68 Cal WN 316, which overruled : AIR1962Cal455 and followed : AIR1959Cal455 (supra) and : AIR1962Cal88 (supra).

4. Minarani v. Dasarath (DB) : AIR1963Cal428

Madhya Pradesh:

Rukhmani Bai v. Kishanlal, Single Bench, : AIR1959MP187 .

Madras:

1. D. S. Seshadri v. Jayalakshmi, (DB) : AIR1963Mad283 , which overruled the decision in C.R.P. No. 692 of 1958 (Mad).

2. Valliammal v. Periaswami, : AIR1959Mad510 . Single Bench

Bombay:

Smt. Kamala v. Shama Rupchand, 1965 Mah LJ (Notes) 107.

Gujarat:

: AIR1961Guj202 (supra)

Punjab:

1. Tarlochan Singh v. Mohinder Kaur, , Single Bench

2. Sunder Singh v. Smt. Manna Sunder Singh, .

Orissa:

: AIR1964Ori122 , Single Judge

Himachal Pradesh:

Shushila Devi v. Dhani Ram,

Mysore:

1. Dhulappa v. Krishnabai. AIR 1962 Mys 172.

2. Tirukappa v. Kamalamma, AIR 1966 Mys 1

(9) The basis on which these High Courts have reached such conclusion is that right of appeal is a substantive right and not a mere matter of procedure, that it has to be in terms conferred by a statute that Section 28 confers such a right of appeal, that this right is against all decrees and orders specified as such in the Act passed by the Court in the proceedings under the Act. That reference to any law for the time being in force made in the latter part of the section is only for purpose of prescribing the procedure which will govern these appeals, the forum where the appeals would be preferred, the extent of right (i.e) whether there would be a right of further appeal and also other details such as limitation. Etc., To put it differently the substantive right of appeal is conferred by S. 28 itself but as the Act has not prescribed the procedure, the forum and further essential details as to how and subject to what conditions the appeal will be preferred and prosecuted, that aspect which is essentially procedural has been left to the other laws for the time being in force. The expression 'any law' used in the section being a very wide term, some of the High Courts have even said that it may be taken to include the very Act, viz., Act XXV of 1955. This in short is the ratio on which the cases referred to above have been decided. That being evidently the pith and substance of these decisions, it is unnecessary for us to go into details of each case.

(10) Now the position is this. There is a sharp conflict of views on a basic question touching the right of appeal and it has resulted from the language of S. 28 of Act XXV of 1955. This Act be it noted, is a self-contained special enactment introducing important changes in marriage law conferring substantial rights hitherto unknown to Hindu Law. It is well acknowledged as a general principle of law that a right of appeal is not a natural or inherent right attached to litigation. It is not simply a matter of procedure. It is indeed a substantive right and does not accrue unless specifically conferred. In other words, it does not exist and cannot be assumed unless expressly given by the statute or by rules having the force of statute. Being thus a creature of statute, it cannot also be vague. It must be definite and explicit. Once it is granted by a substantive provision, a procedural section cannot be permitted to whittle it down or modify the same. So then, if the right is granted expressly in relation to all orders and decrees unless there are limitations in the grant itself, full effect thereto has to be given by the procedural provision.

(11) As we have already noticed if at all there is any difficulty in reaching unanimity on the question of a right of appeal it appears to be only difficulty of language rather a seeming doubt or difficulty in the construction thereof. The rules of construction of statutes are firmly settled. While interpreting statutes one should always bear in mind that the Statute is the will of the Legislature and is to be expounded according to its intent. The end and aim of interpretation is to determine what exactly is the intention as conveyed by the language used either expressly or by necessary implication. If the words used are precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense the words themselves in such a case best declaring the intention of the Legislature. When the language is plain and admits of one meaning the task of construction hardly arises. But it cannot always be conceded as plain language when it involves absurdity inconsistency or repugnancy. Where the literal construction would lead to such absurdity the grammatical sense may be modified so as to avoid that difficulty and no further, (See Aryasamier v. Venkata Chela, ILR 40 Mad 989 at p. 1000=(AIR 1918 Mad 1187 at p. 1192). The literal construction ought not to prevail if it is opposed to the intention of the Legislature as apparent from the Statute and if the words are sufficiently flexible to admit of some other construction by which the intention will be better effectuated. (See Caledonian Rly. Co. v. North British Rly. Co., (1881) 6 AC 114 at p. 112), Rex v. Halliday, 1917 AC 260 at p. 303 and Middlesex, JJ, v. R., (1884) 9 AC 757 at p. 770. Thus if two interpretations are possible that which best effectuates the purpose of the Legislature must be adopted. The construction should be as far as possible beneficial, namely that which would advance the remedy and suppress the mischief if that could be done without violence to the language. All those principles are well settled and so also the cardinal principle that the words used are the best guide of the Legislature. Now before coming to the language of Sec. 28 itself, we notice some of the provisions which have a bearing thereon.

(12) We have casually observed in the earlier part of judgment that the Act has given certain new rights to the parties. It has fixed a forum where they can work out those rights by making petitions. It has specified that the decisions given in these proceedings will be either decrees or orders. The decisions given under Secs. 9 to 13 are specified as decrees and those given under Sections 24 - 27 as only orders. Sec. 20 refers to the contents and verification of such petitions Sec. 21 makes the C.P.C., so far as it is consistent with the other provisions of the Act and also the rules that the High Court may make in that behalf applicable to all the proceedings under the Act which result in the above mentioned decrees and orders. Sec. 28 provides for enforcement of such decrees and orders by introducing a fiction as though they are decrees and orders passed in exercise of original civil jurisdiction. It further provides for appeals from such decrees and orders made by the Court. We may extract here this provision, which is very material for our purpose.

28 Enforcement of, and appeal from, decrees and orders:- 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.'

The heading shows the purpose of the Section, which is no other than making provision for enforcement of decrees and orders passed and for appeals therefrom. It is also obvious therefrom that this particular field is not already covered by the earlier provisions of the Act. The first part of the provision relates to the enforcement of the decrees and orders. It says that they shall be enforced in like manner as the decrees and orders of the Court in exercise of the original civil jurisdiction are enforced. As Sec. 21 made the Civil Procedure Code applicable only to the proceedings under the Act (i.e.) the proceedings resulting in decrees and orders, the Legislature though it necessary to make further provision in Sec. 28 for enforcement of these decrees and orders also. This it did by introducing some statutory fiction. It has stated that the decrees and orders in the proceedings under the Act shall be enforced as though they were decrees and orders made in exercise of the original civil jurisdiction. It is obvious that but for this fiction they could not have been decrees and orders to be dealt with under C.P.C. The matter could not end there for, there should also be remedies provided against such decrees and orders. It has, therefore, said in the second part of the section that all decrees and orders made by the Court in such proceedings may be appealed from. The expression 'May be appealed from' refers to the act of instituting appeals and necessarily implies that there is a right of appeal conferred against all decrees and orders. This right of course flows from this very provision, for a right of appeal is a substantive right and not a mere matter of procedure and has to be created by the statute. One would search in vain for the provision of appeal in any of the sections of the Act except in the second part of Sec 28 for, Sec. 21, as already noticed, is confined to the proceedings resulting in decrees and orders and the first part of Sec. 28 only to the enforcement of such decrees and orders made in any proceedings under the Act. The proviso thereto, however, restricts this right by laying down that there shall be no appeal on the subject of costs only. This restriction again was not possible unless the substantive provision conferred right of appeal. It follows that except on the subject of costs, all orders and decrees made in the proceedings under the Act can be appealed from.

(13) There is, however, another part of the provision which precedes the proviso that must needs be considered. That consists in the crucial clause 'under any law for the time being in force', which has given rise to real controversy. The question is when read with the clause 'may be appealed from' would it resolve itself into a mere procedural provision to be availed of for the exercise of the right of appeal conferred by necessary implication by Sec. 28 itself or does it mean that the right of appeal itself must be referable to any other law for the time being in force. To put it differently as the Act has not in any of the other sections provided for forum, for filing the appeal and for the procedure to be followed whether Sec 28 having given right of appeal against all orders and decrees has left those matters to be governed by procedural laws for the time being in force or is it that Sec 28 by itself did not confer any right of appeal at all, but simply said that an appeal would lie only if such right exists in any other law for the time being in force. Herein lies the crux of the whole question. The scope for dispute has arisen as this part of the provision is not happily worded. The Legislature should have used clearer words to express their intention. But the reason for not doing so is not far to seek. Inartistic the draftsmanship may be, we notice, however, a parallel provision in Sec. 55 of the Indian Divorce Act of 1869, which was judicially interpreted long ago and presumably was before the draftsman when he drafted the provision in question. Even the Special Marriage Act of 1954 contains similar phraseology in one of its provisions. It will be apt to extract the relevant provision of the said enachtments, viz.:-

Section 55 of the Indian Divorce, Act. 1869:-

'All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from, under the laws, rules and orders for the time being in force:

Provided that there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage: nor from the order of the High Court confirming or refusing to confirm such decree:

Provided also that there shall be no appeal on the subject of costs only.'

Section 39 of the Special Marriage Act, 1954:

'All decrees and orders made by the Court in any proceeding under Chapter V or Chapter VI shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from under the law for the time being in force:

Provided that every such appeal shall be instituted within a period of ninety days from the date of the decree or order.'

(14) It may be seen that while the expression used in Sec. 55 of the Indian Divorce Act is: 'may be appealed from, under the laws, rules and orders for the time being in force', and in Sec. 39 of the Special Marriage Act 'may be appealed from under the law for the time being in force', the expression used in Sec. 28 of the Hindu Marriage Act is 'may be appealed from under any law for the time being in force'. This slight difference is inconsequential for our purpose. In the context the meaning of either expression is the same. To know the mind of the legislature in using that phraseology we may as well find a clue even in the provision Sec. 55 of the Indian Divorce Act has two provisions instead of only one as is found in Sec. 28 of the Hindu Marriage Act. The first proviso cuts down the all comprehensive effect of the substantive class by prohibiting particular appeals. Such an exception could be engrafted only if the main section gave substantive right of appeal against all decrees or orders made under that Act. The other proviso which prohibits appeal against order of costs is the same as enacted in Sec. 28 of the Act (Act XXV of 1955). This is however not found in Sec. 39 of the Special Marriage Act. The proviso in Sec. 39 of the Special Marriage Act instead prescribes the period in which the appeal should be instituted, which is again a clear pointer of the fact that the substantive provisions gave a right of appeal in relation to all decrees or orders passed under the asides Acts. This effect, has been sought to be produced in the relevant Act by using the expression 'may be appealed from under the law or laws for the time being in force'. We do not think that similar language of the substantive provision in Sec. 28 could be intended to produce a different effect or reflect a different intention of the Legislature.

(15) There is indeed sufficient authority besides for the proposition that the first paragraph of Sec. 55 of the Indian Divorce Act did by itself confer a right of appeal from all decrees and orders made under that act. In A. (Husband) v. B. (Wife), (1898) ILR 22 Bom 612, which of course was concerned with a decree under the said Act of 1869, the right of appeal was held to have been created by Sec. 55 itself and the exercise of that right was subjected to different laws, rules and orders for the time being in force. In the two cases decided by the Lahore High Court, viz., (1) AIR 1937 Lah 176 and (2) AIR 1937 Lah 862, where the objection was raised that the appeal was not competent against the order in the first mentioned case and decree in the second mentioned case, it was held by the learned Judge that the appeal was competent under Sec. 55 itself. The particular interpretation on the clause which led to this conclusion has indeed stood the test of time. Not a single decision is brought to our notice which has struck a different not in relation to this piece of legislation which is on the Statute Book ever since 1869. The Act with which we are concerned is of 1955. The legislature must be presumed to have used the similar clause (i.e.) 'May be appealed from under any law for the time being in force' in Act XXV of 1955 according to the meaning and implication of that clause well settled by the said age-long judicial interpretation. In this premises it is just, proper and legitimate to hold that substantive right of appeal has in fact been given by Sec. 28 itself and the reference to any law for the time being in force in the second part of the provision in relation to preferring the appeal is for purposes of regulating the procedure, forum and other details as the Act itself has not in any of the sections made express provisions in that behalf. There is little scope therefore for the argument that the Legislature by using the words 'under any law for the time being in force' intended that there could be right of appeal only if it existed in any law for the time being in force.

(16) Reliable and most effectual proof of intention of the legislature though the above process of inference may furnish we need not rest our judgment in this case mainly on this historical ground namely the language of the Indian Divorce Act as judicially interpreted. There is besides ample authority including that of the highest Court of the land for the proposition that the clause of this kind does not necessarily mean that the conferment of right of appeal was made to depend on any other law. It may as well mean that the procedure for filing the appeal, powers of Court for dealing with the appeal were governed by any other law. We may in this behalf refer to the dictum of the Supreme Court in Vidya Charan v. Khubchand, : [1964]6SCR129 , where the words 'under the Code of Civil Procedure' used in Article 156 of the Indian Limitation Act in relation to appeals came up for interpretation Ayyangar, J. Referred with approval to the decisions of various High Courts wherein it was held that in order to attract that article it was sufficient if the C.P.C. regulated the procedure for filing the appeal and the powers of Court dealing with the appeal. It may be apt here to refer incidentally to the observations of the learned Judge which lend support to what we have expressed earlier that the established time-honoured judicial view must prevail when we consider similar phraseology in a subsequent piece of legislation. The learned Judge said: 'In any event we are not drepared to disturb the decisions which have stood for so long and on the basis of which Indian legislation has proceeded'. Subbarao, J in reaching the same conclusion with regard to the meaning of the clause 'appeal under the Civil Procedure Code' cited with approval the observations of the Calcutta High Court in Aga Mohd. Hamadani v. Cohen, (1886) ILR 13 Cal 221 at p. 224 which were to the following effect:

'The Limitation Act, Schedule II, Art. 156, when it speaks of the Civil Procedure Code is on the face of it, speaking of a Code which relates to procedure and does not ordinarily deal with substantive rights; and the natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by the Code of Civil Procedure so far as procedure is concerned.'

(17) That was also the view of the Madras High Court in Ramaswami Pillai v. Deputy Collector of Madura, ILR 43 Mad 51 at p. 55 (AIR 1920 Mad 407 at p. 408), where at page 55 the learned Judges said:

'There seems to be no good reason for saying that an appeal under the Civil Procedure Code means only an appeal the right to prefer which is conferred by the Code itself, On the other hand it would not be straining the language of the Article too much to hold that an appeal, the procedure with respect to which from its inception to its disposal, is governed by the Civil Procedure Code, may rightly be spoken of as an appeal, under the Code.'

Finally the learned Judges concluded: 'That also tends to show that what is meant by the legislature is appeals, the hearing and disposal of which is governed by the rules of procedure laid down in the Civil Procedure Code.'

(18) After considering the various cases on the subject Subbarao, J., concluded thus:-

'I, therefore, hold that the expression 'appeal under the Code of Civil Procedure' in Art 156 of the Limitation Act means an appeal governed by the Code of Civil Procedure.'

(19) We do not think it necessary to dilate on this aspect further. It is true the judgment of the Supreme Court turned on the interpretation of Art. 156 of the Limitation Act, having regard to the phraseology used and the Article referred to therein. We are, however, concerned not with that Article but only with the expression 'Appeals under the Code' which has been interpreted there to mean the procedure applicable to an appeal. It is sufficient for our purpose if the word 'under' is capable of that meaning having regard to its context. Thus it is clear that the expression employed in the provision even in ordinary connotation may as well refer to procedural aspect of the matter.

(20) It is but fundamental that when two interpretations are possible that which better effectuates the intention of the Legislature would be adopted. The question is whether the clause 'may be appealed from under any law for the time being in force' should mean in the context that the appeals may be preferred and prosecuted in accordance with the relevant provisions of law for the time being in force. That turns on the intention of the Legislature as apparent from the statute. We have already stated that the Statute is the will of the legislature which is to be expounded according to its intent. We have earlier pointed out that at the time of drafting Sec. 28 the language of Sec. 55 of the Indian Divorce Act was before the draftsman or legislature as a model. The meaning of that language was well established by judicial interpretation which was uniform. It must necessarily follow that the Legislature intended to give the same meaning to the expression deliberately exployed in the Act. The clause 'May be appealed from under any law or the time being in force' must have been intended to mean that the right of appeal conferred by the provisions has to be enforced in accordance with the law regulating procedure, forum and other allied matters. The intention of the Legislature to confer substantive right of appeal under this section itself is even otherwise obvious from the statute. The avowed purpose of Sec. 28 from its very heading was to provide for the enforcement of the orders and decrees passed and also give a right of appeal. Most of the remedies provided under this Act by way of making application were unknown to Hindu Law before the advent of the Act, Judicial separation and divorce were not available to married persons under the Hindu Law before. As these proceedings culminating in decrees or orders were new and a creature of special enactment, the provisions of C.P.C. were in terms incorporated so far as they were not inconsistent with the provisions of the Act, to regulate the procedure. Section 21 enacted in this behalf was confined to the proceedings under the Act which resulted in orders and decrees. Which are the decrees and which are the orders have been specified by the Act in its various provisions and they alone by introduction of a statutory fiction in Sec. 28 were treated for a limited purpose to be decrees and orders made in exercise of original civil jurisdiction. It is obvious that but for this provisions those specified decrees and orders could not have been treated as such for they may not come within the meaning of Sec. 2(2) and (14) of C.P.c. nor could they be enforced, or executed in accordance with the provisions of the Code of Civil Procedure. This provision became necessary as the act itself did not make any rules for their enforcement. The power so conferred was further regulated by the clear provision of the Act and could not go beyond. It was confined to execution of the decrees and orders. The provisions of appeals against decrees and orders as embodied in the CP.C. could not be attracted unless such powers are specifically conferred. They being procedural must depend besides upon the conferment of the substantive right by the Act itself. That is why the second part of the provision has been enacted. That embodies in itself the right of appeal and the manner in which it is to be enforced. In that way alone the scheme can be said to be complete. The alleged dubious meaning of the words employed has given room for doubt. Once it is obvious that Act XXV of 1955 is a self-contained special enactment conferring new rights and prescribing remedies hitherto unknown to Hindu Law, it is meaningless to expect that right of appeal in relation to orders passed under the Act would be available in any other law. The clause 'may be appealed from under any provision of law for the time being in force' would therefore be meaningless if it be construed to mean that the right of appeal has been made to depend upon the existence of any provision in that behalf in any law unless we say that any law would also mean the Act itself. It is further significant that the provision says 'All decrees and orders may be appealed from'. There is no law for the time being in force which contains provisions of right of appeal against all specified orders in the Act. Even C.P.C. the provisions of which are attracted by reason of fiction introduced in relation to decrees and orders for purpose of enforcement and execution does not contain any provisions with regard to appeal against the order made under the Act.

It is idle to think that C.P.C. could have anticipated the advent of the Act and made provisions therefor in its Sec. 104 or Order 43. If we interpret the fiction introduced by Sec. 28 to mean also that it is available for determining the right of appeal under C.P.C., or any other law then the expression 'all orders' deliberately employed by the Legislature becomes meaningless for C.P.C. made no provision therefor, nor anyother law or rules having the force of law have provided for the same. That apart, when the right of appeal is not a mere matter of procedure but a substantive right and has to be conferred by the Statute, it is only natural and reasonable to expect the conferment of right by the act itself. It is unreasonable to think that the Legislature which contemplated the idea of appeals against all decrees and orders having regard to their particular importance had left the matter vague or made it depend on the remote possibility of existence of such right in any law which could not even anticipate the advent of this Act or the hitherto unknown rights and remedies provided therein. It is thus manifest that if the clause 'may be appealed from under any law for the time being in force' be interpreted to mean that the appealability depended upon the right to be found in any other law for the time being in force, that must necessarily lead to absurdity, inconsistency and repugnancy. It is absurd and meaningless because it is vain to expect that a right of appeal for orders passed under the specific provisions of any Special Act would be found in the previous laws especially when the orders of the kind could have no parallel in any previous law. It is repugnant and inconsistent with the Act because whereas the Act provides for the appealability of all orders, no known law including the Civil Procedure Code provides for the appealability of the orders under the Act. The legislature and definitely in mind that all orders are appealable except on subject of costs. It cannot be said that this provision was made in vain. It becomes otiose and would be rendered meaningless if the above interpretation is put on the clause.

(21) The presence of the proviso also is a circumstance against such intendment of the Legislature. The province of the proviso is to restrict the right given by the substantive provision or provide an exception. If the main provision itself has not conferred or declared any right the proviso should be there out of place.

(22) Above all, it may noted that in the second part of the section reference to any law for the time being in force is made in relation to the act of instituting appeal and not to the character of the appealability or right of appeal itself. The clause does not say that the decrees and orders have to be appealable under any law for the time being in force, but says that they may be appealed from under any law for the time being in force. It virtually says that the appeals against all decrees and orders may be instituted and prosecuted in accordance with any law for the time being in force. To say they must be appealable under any law is one thing and the very act of instituting appeal under or in accordance with any law is a different thing. Of course, no appeal can be validly instituted or prosecuted unless there is a right of appeal. The act of appealing thus implies an existing right of appeal; but both the rights are distinct and separate, but both the rights are distinct and separate. Right of appeal is a substantive right and the enforcement thereof is a substantive right and the enforcement thereof is a procedural one. The word 'may be appealed from', as already noticed, implies the existence of right of appeal; but that is not to say that the act of appealing by itself is that substantive right. It is but the enforcement of that substantive right. It is indeed in relation to enforcement of that right that law for the time being in force has to be availed of. Intent on using that particular expression the Legislature would have done well if it had used a few more words for the sake of clarity, so that the said provision may read, 'All decrees and orders ... are appealable and may be appealed from under any law for the time being in force.' Perhaps having regard to the elasticity of the meaning of the term, 'may be appealed from' which implies appealability as well, it resorted to this brevity of form as the meaning thereof was well settled by time-honoured judicial interpretation.

Be that what it may, it is clear from our discussion that the expression 'under any law for the time being in force' must be referable not to the substantive right of appeal which is conferred by Sec. 28 itself in relation to all decrees and orders specified as such in the relevant provisions of the Act, viz., Sections 9 - 13 and Sections 24 - 27, but to the procedure, forum and other relevant matters for the enforcement of the right of appeal. This interpretation accords not only with the one put by the Supreme Court on the language of Art. 156 of the Indian Limitation Act where the words 'appeal under the Code' were taken to mean that it is not necessary that the right of appeal should itself be given under the C.P.C. but it was sufficient if the proceedings for filing of the appeal and the powers of the Court for dealing with that appeal were governed by that Code. It is this interpretation which ought to be preferred to the other interpretation sought to be put as it removes absurdity, repugnancy and inconsistency which the other interpretation gives rise to and further gives effect to the intention of the Legislature apparent from the Statute, without straining or doing violence to the language used and by putting that construction as the words employed admit of. This view of ours is in conformity with the view taken by the Calcutta, Madras, Mysore, Madhya Pradesh, Gujarat, Himachal Pradesh, Orissa and Punjab High Courts in : AIR1959Cal455 , : AIR1959MP187 , : AIR1961Guj202 , , , : AIR1964Ori122 , and AIR 1962 Mys 172 and especially with the line of reasoning adopted by the Calcutta High Court in (1964) 68 Cal WN 316, by the Madras High Court in : AIR1963Mad283 , by the Mysore High Court in AIR 1962 Mys 172 and by the Punjab High Court in . We cannot accept the view taken in AIR 1960 Bom 315, : AIR1960AP30 and : AIR1962Cal455 . We are of the view that Section 28 by itself gives the right of appeal, and the enforcement thereof is made subject to the laws in force relevant thereto. That is what is contemplated by the second part of Sec. 28 of the Act. We, therefore, answer the question in the affirmative.

(23) Question answered accordingly.


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