P. Chandra Reddy, C.J.
1. The question raised in this reference is whether appeals from decrees passed under Sections 9, 10, 11 and 13 of the Hindu Marriage Act (XXV of 1955) should be registered as civil miscellaneous appeals or first appeals.
2. The practice in this court was to register them as civil miscellaneous appeals till a decision was rendered by Umamaheswaram J. in S. R. No. 6720 of 1959'. There, the learned Judge held that having regard to the language of these sections which describe the decision of the court as a decree, regular appeals lie from these adjudications and that it is not correct to register them as civil miscellaneous appeals.
The lerned Judge drew a distinction between these sections and Sections 24 - 26 which relate to the granting of maintenance, expenses of proceeding and custody of children, the decisions under which are regarded as orders. In the opinion of the learned Judge, appeals from orders arising under the latter group of sections alone could be registered as civil miscellaneous appeals while those under Sections 9, 10, 11 and 13 should be registered as regular appeals. He thought that this consequence flows from a reading of Section 28 of the Hindu Marriage Act read with Section 96 of the Civil Procedure Code.
3. Section 9 deals with restitution of conjugal rights, Section 10 with judicial separation, Section 11 with void marriages and Section 13 with divorce. In all these matters the concerned civil court is empowered to grant decrees giving the reliefs asked for. But the question for consideration is whether the description of the adjudication as a 'decree' is decisive of the matter, namely, whether appeals arising therefrom should be regarded as first appeals. The answer to this turns upon Section 90 C.P.C. which confers a right of appeal upon litigants against the decrees passed in the exercise of original jurisdiction. That section, in so far as it is material for our enquiry, reads:
'Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court'.
4. It is immediately clear that an appeal is competent under that section only from a decree passed by a Court in the exercise of its original jurisdiction. In other words, it should be a decree within the connotation of Section 2(2) of the Code. Decree as defined in that section is:
''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 within Section 47 or Section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.'
Thus, the pro-requisite of a decree is that the proceeding which results in an adjudication should start in a suit.
5. 'Suit' is not defined in the Civil Procedure Code, but some help could be derived from Section 29 of the Code which says :
'Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.'
This section gives a clue to the problem as to what a suit is, namely, that it is a proceeding which is initiated by the filing of a plaint.
6. A reference to some of the statutes would establish that a proceeding though not started by a plaint could be regarded as a suit, provided that a specific provision is made in that behalf, as in the case of Section 20(2) of the Arbitration Act, 1940 (X of 1940) which recites:
'The application shall be in writing and shall 'be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties, or if otherwise, between the applicant as plaintiff and the other parties as defendants.'
This shows that though some proceedings might be started in applications, they could still be regarded as suits for purposes of those enactments, provided it is specially provided for therein. In the absence of such provision, any proceeding except the one started by presentation of a plaint and an adjudication given therein will not be a decree for purposes of Section 96.
This position is incontrovertible, especially in view of the decision of the High Court of Madras in Rajagopala Chettiar v. H. R. E. Board, ILR 57 Mad 271 : (AIR 1934 Mad 103(2)). It was there laid down by a Full Bench that an order under Section 84 of the Madras Hindu Religious Endowments Act (II of 1927) was not appealable as it was not a 'decree' within the purview of Section 2(2) C. P. C. notwithstanding that it had most of the postulates of a decree in that it finally determined the rights of parties.
7. Following this, a Bench of this Court consisting of one of us in Venkatanarapu v. Pedda Reddamma, 1958-2 Andh WR 316, has ruled that an order in an application for setting aside an ex par to order passed by the Insolvency Court, does not fulfil the definition of 'decree' notwithstanding the fact that such an application is permissibly by reason of Order IX, R. 13 read with Sections 141, Civil Procedure Code and 5 of the Provincial Insolvency Act.
The adjudications under Sections 9, 10, 11 and 13 of the Act are regarded as decrees only for the purpose of those sections and they cannot be treated as decrees within the meaning of Section 2(2). C. P. C. We have already stated that Section 96, C. P. C. is applicable only to decrees coming under Section 2(2). So, decrees passed under the above-mentioned sections of the Act are outside the purview of Section 96. C. P. C. Appeals filed under Section 96, C. P. C. alone can (all within the category of regular appeals and should be registered as such,
8. Umamaheswaram, J. thought that decrees passed under Sections 9, 10, 11 and 13 of the Hindu. Marriage Act have the same force as those made under Section 295 of the Indian Succession Act (XXXIX of 1925). Section 295 of that Act can have no analogy here for the reason that whenever the grant of probate is contested and the proceeding thus becomes contentious, it Jakes the form of a regular suit. Section 295 enacts :
'In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code ot Civil Procedure. 1908 (V of 1908) in which the petitioner for probate or Letters of Administration, as the case may be, Shall be the plaintiff, and the person who has appeared to oppose the grant shaii be the defendant.'
Thus, although the probate proceeding is started in the form of an Order 1 it takes the shape of a suit when once there is a contest. Therefore, that does not render us any help in deciding the question whether a decree granted under the Hindu Marriage Act could give rise to a regular appeal.
9. We may here usefully refer to the provisions of the Land Acquisition Act (I of 1894) under which a regular appeal lies against an order passed by a competent civil court on a reference made by a Collector under Section 18 of that Act. Section 54 of that Act which clothes the affected party with a right of appeal, is as under :
'Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act, to the High Court from the award, or from any part of the award, of the Court, and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in S. HO of the Code of Civil Procedure, 1908, and in Order XLV thereof.'
Section 26(2) reads :
'Every such award shall be deemed to be a decree and the statement of the grounds of every award a judgment within the meaning or Section 2. Clause (2) and Section 2, Clause (9), respectively of the Code of Civil Procedure, 1908.'
These provisions reveal that the legislature was conscious of the distinction, between 'decrees' mentioned in the enactments and the decrees envisaged by Section 2(2), C. P. C. If a decree is not one passed in a suit, an appeal that is competent from such a decree could only be registered as a civil miscellaneous appeal and not as a first appeal.
10. For these reasons, we feel that the practice that was being followed by the office is correct and the decision of our learned brother Umamahe-swararn, J. in S. R. No. 6720 of 1959 and that of Sanjeeva Row Nayudu, J. in C. M. A. No. 101 of 1957 following S. R. No. 6720 of 1959, are not correct. All the appeals which have been registered as first appeals consequent upon the decisions in S. R. No. 6720 of 1959 and C. M. A. No. l of 1957 will be registered as civil miscellaneous appeals. They will be posted before a Division Bench having regard to Rule 17(1) of the rules framed under the Hindu Marriage Act by this Court.