G.K. Misra, J.
1. In Title Suit No. 11 of 1959 in the Court of the District Judge of Sambalpur, the appellant, the wife of respondent, prayed for a decree for restitution of conjugal rights. She filed an application on 10-4-1962 for maintenance pen-dente lite at the rate of Rs. 40/- per month and a sum of Rs. 200 towards expenses of the proceeding under Section 24 of the Hindu Marriage Act, 1955 (Act 25 of 1955), hereinafter to be referred to as the Act. mentioning in the application the details of the income of the respondent and asserting that she had absolutely no independent income to support her and to defray the expenses of the proceedings. The learned District Judge rejected this application on 18-6-1962. Against this order, the Misc. appeal has been filed. The relevant portion of the order of the learned District Judge may be quoted :
'it appears from order No. 18 dated 19-8-1960 that the plaintiff has been allowed a consolidated sum of Rs. 100/- to defray the expenses of the suit proceeding and that she has received the said cost as per order No. 21 dated 14-9-60. Since the date fixed for hearing of the suit is 26-7-62, I do not at present want to consider granting interim alimony. Hence the petition filed by the plaintiff for interim alimony is rejected.'
2. The only contention urged in support of the appeal is that the learned District Judge failed to exercise his jurisdiction vested in him. A preliminary objection is raised that no appeal lies. The relevant portion of Section 28 of the Act may be quoted :
'All decrees and orders made by the Court in any proceeding under this Act x x x x x 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.'
On behalf of the respondent this section is construed to mean that no right of appeal has been conferred under Section 28 of the Act. Indisputably the order, under challenge, is an order and not a decree. Section 104(1), C. P. C. lays down that an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders. Order 43, Rule 1, C. P. C. enumerates various orders from which an appeal shall lie. The argument runs that as Section 104 and Order 43, Rule 1, C. P. C. make no provision for appeal against orders of the court in any proceeding under the Act, ao appeal lies from this order. Reliance is placed in support of this construction on Saraswathi v. Krishna Murthy, AIR 1960 Andh Pra 30; Prithyiraj-singh Mansinghji v. Bai Shivprava Kumari, AIR 3960 Bom 315 and Gopendra Nath v. Sm. Prativa Rani, AIR 1962 Cal 455. These decisions support fee preliminary objections.
3. It must be confessed that the section has been inartistically drafted and is responsible for the sharp conflict of authorities. If the construction suggested by the respondent is accepted, there would be no right of appeal either under Section 28 of the Act or under any other law for the time being in force. Though the aforesaid reasoning cannot be rejected as wholly untenable, it makes provision for appeal under Section 28 of the Act nugatory. The Legis-lature was quite aware of the position that there is no other law for the time being in force under which an appeal can lie from any order in any proceeding under the Act. If no appeal is provided under Section 28, there would be no meaning in saying in the proviso that no appeal lies against costs only. ; In that case, the language used should have been that no appeal lies against any order in any proceeding under the Act. The right of appeal is a substantive right which is always a creature of the statute and is not a mere matter of procedure G. Veeraya v. N. Subbiah Choudhry. (S) AIR 1957 SC 540. The proper construction is that the expression 'may be appealed from' confers substantive right of appeal against all decrees and orders made by the Court in any proceeding under the Act. This substantive right is created by the Act under Section 28. The expression 'under any law for the time being in force' refers to the forum and the procedure to be followed under any other law for the time being in force which includes Civil Procedure Code and the I Rules framed by the High Court. Section 21 of the Act enacts--
Subject to 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 'Act V of 1908'.
No independent and separate provision is made in the Act regarding the forum and procedure for hearing the appeal. The better construction, there-force, is that an appeal lies against all decrees and orders made by the Court in any proceeding under Section 28 of the Act, excepting against costs only. This construction is consistent with the proviso that there shall be no appeal on the subject of costs only. This view is supported in Smt. Sobhana Sen v. Amar Kanta, AIR 1959 Cal 455 and Harilal Purush-ottam v. Lilavati Gokaldas, AIR 1961 Gujarat 202. It is unnecessary to refer to other authorities in support of this line of reasoning. It is remarkable that the Division Bench decision in AIR 1959 Cal. 455 was not brought to the notice of the learned Single Judge in AIR 1962 Cal. 455 who took a contrary view. For the reasons discussed I am clearly of opinion that the miscellaneous appeal is competent.
4. On the merits, the order of the learned District Judge cannot be upheld. Section 24 of the Act enacts :
'Where in any proceeding under this Act it appears to the Court that either the wife or the hus-band, as the case may be has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.'
The various elements prescribed in the section must be enquired into and it is the bounden duty of the Court to record findings after enquiry on each of the elements and then come to the conclusion whether interim maintenance and expenses of the proceeding should be awarded. The learned District Judge failed to exercise his jurisdiction in refusing to go into this question on the ground that a consolidated sum of Rs. 100/- had already been received by the petitioner to defray the expenses. Judicial determination cannot be deferred on other consideration. The order under appeal cannot be upheld. The learned District Judge is directed to give opportunities to the parties to lead evidence and decide the case in accordance with law.
5. In the result, the appeal is allowed and the case is remanded to the learned District Judge for disposal in accordance with law.
6. Costs should abide the result.
7. Title Suit No. 11 of 1959 kas become very old and it is hoped that the suit would be disposed of as quickly as possible.