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Chandramani Singh Vs. Premalata Mohanty - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case Number First Appeal No. 192 of 1993
Judge
Reported in1993(II)OLR553
ActsFamily Courts Act, 1984 - Sections 24 and 29
AppellantChandramani Singh
RespondentPremalata Mohanty
Appellant AdvocateBrahmananda Panda, Devasis Panda, J. Rath and P.K. Tripathy
Respondent AdvocateNone
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - on such application, if family court would have been satisfied, it could have recalled the order already passed. however, section 19(5) clearly stated that except orders as provided to be appealable or revisable, no appeal or revision is entertainable......under sec 19 of the hindu marriage act, interim maintenance at the rate of rs. 300/- per month and litigation expenses of rs. 100/- was granted. on constitution of family court, the proceeding stood transferred to the said court under section 8(c) of the act. while appellant continued to pay, there was an arrear of rs. 2,400/-. wife filed an application before the family court to give a direction on basis of which direction was given, wife filed an application to direct appellant to pay arrear litigation expenses at the rate of rs. 100/-per month as directed, by learned subordinate judge, family court having accepted the prayer of wife in the impugned order, this appeal has been filed.3. stamp reporter has pointed out that this appeal is not maintainable in view of section 19(3) of the.....
Judgment:

S.C. Mohapatra, J.

1. This is an appeal purported to be under Sec, 19 of the family Courts Act- 1984 (for short 'the Act').

2. Appellant initiated a proceeding against opp. party in the Court of Subordinate Judge, Jagatsinghpur under Sac. 13 of the Hindu Marriage Act, 1955. In an application under Sec 19 of the Hindu Marriage Act, interim maintenance at the rate of Rs. 300/- per month and litigation expenses of Rs. 100/- was granted. On constitution of Family Court, the proceeding stood transferred to the said Court Under Section 8(c) of the Act. While appellant continued to pay, there was an arrear of Rs. 2,400/-. Wife filed an application before the Family Court to give a direction on basis of which direction was given, Wife filed an application to direct appellant to pay arrear litigation expenses at the rate of Rs. 100/-per month as directed, by learned Subordinate Judge, Family Court having accepted the prayer of wife in the impugned order, this appeal has been filed.

3. Stamp Reporter has pointed out that this appeal is not maintainable in view of Section 19(3) of the Act read with Rule 6 of the Family Courts Rules, 1988. Section 19 as it stands after amendment by Act 59 of 1991 reads as follows :

'19. Appeals and Revisions - (1) Save as provided in Sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908(5 of 1908), or in the Code of Criminal Procedure, 1973 (2 of 197 4), of in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973: Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter-IX of the Code of Criminal Procedure, 1973 before the commencement of the Fimily Courts (Amendment) Act, 1991.

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court;

(4) The High Court may, of its own motion or otherwise, call for to examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, as to the regularity of such proceeding.

(5) Except as aforesaid, no appeal or revision shall tie to any Court from any judgment, order or decree of a Family Court.

(6) An appeal preferred under Sub-section (1) shall be heard by a Bench consisting of two or mere Judges.'

Perusal of this provision makes it clear that appeal does not lie against an order under Chapter IX,.CrPC or any interlocutory order. Except those two circumstances, appeals against any other order of the Family Court. Prior to amendment, appeal was also maintainable against an order under Chapter IX, Cr PC.

4. In order that an appeal against an order Under Section 24 of the Hindu Marriage Act would he maintainable, it should not be an interlocutory order. It is to be established, no appeal ties against an order Under Section 24 of the Hindu Marriage Act. Anomaly in giving right of appeal against order under Chapter IX, CrPC was removed by amending Section 19. If order Under Section 24 of the Hindu Marriage Act would not be an interlocutory order, appeal would be maintainable.

5. Term 'interlocutory order' has been used in Section 115, CPC and Section 397, Cr PC taking away the revisional power of the Court. Any order which affects right of parties though not final order, are not interlocutory orders. Where, however, the very Court can change its order if without impediment by following the principle of natural justice. such order would be interlocutory order. Object of interlocutory orders being between out of purview of revision either under CPC or under Cr PC was to expedite the finality of proceeding without interference at interim stages unconnected with most of adjudications. Same would be the meaning of term 'interlocutory order' used in v. 19 of the Act.

6. An order refusing interim maintenance or litigation expenses would affect right of a party to take part in the proceeding or survive to take part. Therefore, though the same is interim in nature would not be interlocutory order. Grant of interim maintenance or litigation expenses Under Section 24 of Hindu Marriage Act is an interlocutory order. Quantum determined in exercise of such power or direction to enforce the order Under Section 24 of Hindu Marriage Act are interlocutory orders. Such orders are amenable for reconsideration by the same Court if moved and in case cogent reasons are given. Court has ample power to vary the orders since it is interlocutory in nature. Where the order is not interlocutory, same Court cannot vary it as the same would amount to review if there is no power of review provided in the statute. Higher authorities if vested with power can set aside, modify or revise the order. Thus, refusal to grant interim maintenance or litigation expenses is applicable under v. 19 of the Act but grant of lesser quantum than prayed for or grant of interim maintenance or litigation expenses or orders for enforcement of the same being interlocutory orders, no appeal lies against such orders- Stamp report that appeal is not maintainable is correct in this case.

7. Mr. J. Rath, learned counsel for appellant submitted that Family Court has not considered that respondent did not accept the amount offered. There being no arrangement in Family Court to receive deposits where a party required to receive the amount avoids or declines, consequences would be serious and as in this case the proceeding shall remain stayed. This was not the legislative intention. I am not impressed. If respondents avoided to receive the amount offered to her, appellant could have obtained a crossed bank draft in her name and filed the ame with an application supported by affidavit and Family Court which has no arrangement to receive deposit and disburse the amount could have kept the crossed bank draft in record to hand over the same to party to whom it is payable. This is no ground to hold that order is not interlocutory. On such application, if Family Court would have been satisfied, it could have recalled the order already passed.

8. Mr. Rath submitted that litigation expenses at the rate of Rs. 100/- per month as interpreted by Family Court is unreasonable and arbitrary. In Family Court there is no scope for engaging a lawyer which is a major part of litigation expenses. Thus, without taking note of the actual requirement, when Jagatsinghpur Court did not specifically direct payment of monthly litigation expenses at the rate of Rs. 100/- per month, such interpretation of the order without further enquiry touches jurisdiction of the Court and even if no appeal lies, the same ought to be revised. There is prima facie force in contention of Mr. Rath. However, Section 19(5) clearly stated that except orders as provided to be appealable or revisable, no appeal or revision is entertainable. In view of such clear prohibition, this appeal cannot be permitted to be converted as revision. However, appellant is given liberty to same Family Court to reconsider the question taking into all material and relevant considerations to be indicated in the petition since there is no scope of appellant being represented by a counsel in that forum However, there is no prohibition for the Court to take assistance of a lawyer willing to assist the Court amicus curiae.

9. Mr. Rath submitted that appeal is to be heard by a Division Bench as provided in Section 19(6) of the Act. If the appeal would have been entertainable, I could not have finally disposed it of. No party can adopt a subterfuge to utilise a Division Bench by using the wrong nomennclature of being under Section 9. Objection as to entertainabiliiy of the appeal can be considered by a Single Judge and I need not refer it to a Division Bench for that purpose.

10. In view of aforesaid discussion appeal is disposed of as not entertainable.


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