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indraj Vs. Smt. Shanti and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 94 of 1978
Judge
Reported inAIR1978All279
ActsHindu Marriage Act, 1955 - Sections 28, 28(1) and 28(4); Hindu Marriage (Amendment) Act, 1976; Limitation Act, 1963 - Schedule - Article 116; Code of Civil Procedure (CPC) - Sections 100
Appellantindraj
RespondentSmt. Shanti and ors.
Advocates:R. Chaudhary, Adv.
Excerpt:
.....- application for decree of restitution of conjugal rights - application rejected both by lower court and appellate court - second appeal filed beyond period of 30 days - whether second appeal barred by limitation - section 28 after 1976 does not apply to second appeals - only provides limitation for appeals from decrees made in original civil jurisdiction and not from appellate decree - held, second appeal not time barred. - - all decrees end orders made by the court in any proceeding 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......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.' after its being substituted by act 68 of 1976 it reads as follows:-- '28. appeals from decrees and orders --(1) all decrees made by the court in any proceeding under this act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. (2) orders made by the court in any.....
Judgment:

N.D. Ojha, J.

1. The appellant filed a petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), praying for a decree for restitution of conjugal rights. Thisapplication was contested by the respondents and was dismissed by the Second Civil Judge, Meerut. Against that decree a First Appeal was preferred before the District Judge, Meerut. The appeal has been dismissed by the Fifth Additional District Judge, Meerut on 23-11-1977. Aggrieved by these decrees the appellant has preferred a second appeal in this Court, The appeal was presented before the Stamp Reporter on 14th March, 1978, and was returned to counsel for the appellant with a report that it was beyond time by fifty-nine days. It appears that the limitation for filing the second appeal has been computed by the Stamp Reporter on the basis that it was thirty days from the date of the decree appealed against in view of Sub-s. (4) of Section 28 of the Act. The appeal was presented before the Court with the aforesaid report on the same date and the correctness of the report of the Stamp Reporter in regard to the limitation was challenged by counsel for the appellant. The matter was accordingly ordered to be listed for consideration of this question.

2. I have heard counsel for the appellant and I am of opinion that the limitation for filing a second appeal under Section 28 of the Hindu Marriage Act, 1955, would be ninety days and not thirty days. Section 28 of the Act was substituted by Act 68 of 1976. Before it was so substituted it read as follows:

'Enforcement of, and appeal from, decrees and orders. All decrees end orders made by the court in any proceeding 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.'

After its being substituted by Act 68 of 1976 it reads as follows:--

'28. Appeals from decrees and orders --(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of Sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under Section 25 or Section 26 shall, subject to the provisions of Sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.'

3. The provision qua appeal in Section 28 of the' Act, as it stood before its being substituted by Act 68 of 1976, was 'and may be appealed from under any law for the time being in for'ce.' The decrees and orders passed under the Act were to be taken to be decrees and orders in the exercise of original civil jurisdiction both for purposes of enforcement and filing an appeal. Consequently in view of Section 28, as it stood before its being substituted by Act 68 of 1976 a First Appeal was maintainable under Section 96 of the C. P. C. and a second appeal under Section 100 thereof. The limitation for filing a first appeal was to be thirty days if it was filed before the District Judge and ninety days if it was filed before the High Court. Of course, in those cases where an appeal lay to the High Court, there was no question of filing a second appeal. The effect of Section 28 of the Act being substituted by Act 68 of 1976 on a plain reading of the section as substituted is that the limitation for filing a First Appeal under Section 28 would be thirty days only even if it is filed before the High Court. The limitation of thirty days, provided for in Sub-section (4) of Section 28 of the Act, as it now stands, is applicable only to first appeals. It is clear from the words 'be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction', used in Sub-section (1)of Section 28 of the Act. Apparently Sub-section (4) of Section 28 of the Act does not provide for the limitation of an appeal filed against an appellate decree and applies only to an appeal filed against a decree made in the exercise of its original civil jurisdiction. The provision for filing a second appeal even after Section 28 of the Act being substituted by Act 68 of 1976, therefore, continues to be Section 100, C. P. C. which, inter alia, provides that save as otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to a High Court. The second appeal would lie on the grounds provided for in Section 100, C. P. C. and the limitation would be the same as for any other second appeal filed under Section 100 C. P. C. the limitation for filing a second appeal under Section 100, C. P. C. is ninety days and not thirty days. The second appeal was filed on 14th March, 1978. After excluding the time spent in obtaining the certified copies of the judgment and decree appealed against (from 24th Nov. 1977 to 15th Dec. 1977^ it was obviously within limitation. The appeal may now be listed for hearing under Order 41, Rule 11, C. P. C.

4. A copy of this order may be sent to the Stamp Reporter for his guidance.


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