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Bai Umiyabhen Vs. Ambalal Laxmidas - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 835 of 1960
Judge
Reported inAIR1966Guj139; (1965)GLR714
ActsHindu Marriage Act, 1955 - Sections 3, 9, 10, 11, 12, 13, 14, 22, 24, 25, 26 and 28; Code of Civil Procedure (CPC), 1908 - Sections 2(2), 96, 100 and 104 - Order 4, Rule 1 - Order 43, Rule 1; Limitation Act - Schedule - Articles 151 and 156; Representation of the People Act - Sections 116A(1) and 116A(2); Indian Divorce Act, 1869 - Sections 55
AppellantBai Umiyabhen
RespondentAmbalal Laxmidas
Appellant Advocate R.C. Mankad, Adv. for; A.D. Desai, Adv.
Respondent Advocate S.B. Vakil, Adv.
DispositionAppeal dismissed
Cases ReferredDhulappa v. Krishnnbai
Excerpt:
family - construction - section 10 of hindu marriage act, 1955 - whether there is right of second appeal from decree passed by district court in appeal from decree passed by civil judge in proceeding for judicial separation under section 10 - held, right of second appeal can be exercised only on question of law and not on question of facts. - - that section 100 of the code of civil procedure did undoubtedly confer a right of second appeal against an appellate decree but in order that that provision should be applicable the appellate decree had to be a 'decree' within the meaning of section 2(2) of the code which the decree in a petition for judicial separation under section 10 was clearly not, since it was not the formal expression of adjudication in a suit, the only other statutory.....bhagwati, j.1. this appeal raises a rather difficult question relating to construction of section 28 of the hindu marriage act, 1955. some three years back this court had occasion to observed in regard to this act that it is a piece of legislation which is not noted for accurate or artistic draftsmanship and this is yet another occasion where we are constrained to make the same observation. the question of construction which arises is whether there is a right of second appeal from a decree passed by the district court in appeal from a decree passed by the civil judge, senior division, in a proceeding for judicial separation under section 10 of the act. the question is a question of some importance because the effect of its decision would not be confined merely to a proceeding for judicial.....
Judgment:

Bhagwati, J.

1. This appeal raises a rather difficult question relating to construction of Section 28 of the Hindu Marriage Act, 1955. Some three years back this Court had occasion to observed in regard to this Act that it is a piece of legislation which is not noted for accurate or artistic draftsmanship and this is yet another occasion where we are constrained to make the same observation. The question of construction which arises is whether there is a right of second appeal from a decree passed by the District Court in appeal from a decree passed by the Civil Judge, Senior Division, in a proceeding for judicial separation under Section 10 of the Act. The question is a question of some importance because the effect of its decision would not be confined merely to a proceeding for judicial separation under Section 10 but would extend also to other proceedings under the Act. The appellant who is the original plaintiff filed a petition against the respondent, her husband, who is the original defendant, for judicial separation under Section 10 on two grounds, namely, (1) that the respondent had deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; and (2) that the respondent had treated the petitioner with such cruelly as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. The petition was filed in the Court of the Civil Judge, Senior Division, Broach, since a notification had been issued by the Slate Government specifying the Court of the Civil Judge, Senior Division, Broach, as the Court having jurisdiction in respect of the mailers dealt with in the Act as provided in Section 3(b) of the Act. The learned trial Judge on a consideration of the evidence held that the respondent had deserted the petitioner since July 1952 and that the petitioner was entitled to obtain a decree for judicial separation. So far as the ground of cruelty was concerned, the learned trial Judge held that cruelty was not established but this finding did not affect the petitioner since the learned trial Judge held that the petitioner was entitled to obtain a decree for judicial separation on the ground of desertion. The respondent thereupon preferred an appeal in the District Court, Broach. The learned District Judge on an appreciation of the evidence took the view that neither desertion nor cruelty were established by the petitioner and in that view of the matter the learned District Judge allowed the appeal and dismissed the suit with costs. The appellant thereupon preferred the present Second Appeal to this Court.

2. When the appeal first came up for hearing before Diwan J., sitting as a single Judge, a preliminary objection against the maintainability of the appeal was raised on behalf of the respondent The contention was that there was no right of second appeal against a decree passed in appeal by the District Court and that the appeal preferred by the appellant was, therefore, not competent. This contention was disputed on behalf of the appellant who maintained that not only was a second appeal competent but that it was much wider in scope in that it did not suffer from any of the limitations imposed by Section 100 of the Code of Civil Procedure and that it lay not only on questions of law but also on questions of fact. Since these rival contentions raised a rather important question which depended for its determination to a large extent on the true construction of Section 28 of the Act, Diwan J., referred the matter to a Division Bench and that is how the appeal has come up before us for hearing.

3. We have already briefly set out the respective contentions of the parties showing how the question arises before us, but it is necessary at this stage to indicate a little more elaborately the lines followed by the arguments in support of the respective contentions. So far as the respondent is concerned it was contended on his behalf that an appeal being a creature of statute, the right of second appeal against a decree passed in appeal by the District Court in a petition for judicial separation under Section 10 must he found in some statute; that Section 100 of the Code of Civil Procedure did undoubtedly confer a right of second appeal against an appellate decree but in order that that provision should be applicable the appellate decree had to be a 'decree' within the meaning of Section 2(2) of the Code which the decree in a petition for judicial separation under Section 10 was clearly not, since it was not the formal expression of adjudication in a suit, the only other statutory provision which could be relied upon as conferring a right of second appeal was Section 28 of the Act but on a true construction of that section the right of appeal conferred by it was limited only to a first appeal against an original decree and did not extend to a second appeal against a decree passed in first appeal and no second appeal, therefore, lay against a decree passed in first appeal in a petition for judicial separation under Section 10. The answer given on behalf of the appellant to this contention was a threefold one. In the first place it was urged that on a true construction Section 28 of the Act conferred not only a right of first appeal against an original decree made by the Court in a petition for judicial separation under Section 10 but also a right of second appeal against an appellate decree made by the Court in such petition and that since there were no limitations imposed by the Section in regard to the grounds on which the right of second appeal could he exercised, the right of second appeal conferred by the Section was an unlimited right which extended not only to questions of law but also to questions of fact. It was then contended that a decree passed in a petition for judicial separation under Section 10 is a 'decree' within the meaning of Section 2(2) of the Code and an appeal would, therefore, lie from it under Section 96 of the Code and so also a second appeal under Section 100. The third and last answer given was that in any event even if Section 28 conferred only a right of first appeal against an original decree made by the Court in a petition for judicial separation under Section 10 once the matter came to the appellate Court by way of first appeal, the ordinary incidents of litigation attached to the decision of the appellate Court in such appeal and a second appeal, therefore, lay against the decision of the appellate Court under Section 100 of the Code. It would be seen that the right of second appeal pleaded under the last two contentions was a limited right confined to questions of law is provided in Section 100 of the Code while the right of second appeal pleaded under the first contention was an unfettered right which extended not only to questions of law but also to questions of fact and it was the first contention which was, therefore, principally pressed on behalf of the appellant and the second and the third contentions were urged only in the alternative to the first contention. The respondent of course denied the validity of all the three contentious urged on behalf of the appellant, but in so far as the first contention was concerned, the respondent submitted that even if Section 28 were construed as conferring a right of second appeal, such right was to be exercised under 'any law for the time being in force' that is, under the Code and the procedure for the filing of the appeal and the jurisdiction and powers of the Court in dealing with the appeal were governed by the Code and consequently the limitations contained in Section 100 of the Code affected the right of second appeal. These were the rival contentions which were urged before us and they raised a question of considerable importance regarding the construction of Section 28.

4. Before we proceed to deal with this question we may dispose of the second contention urged on behalf of the appellant. That contention was, as we have pointed out above that a decree passed in a petition for judicial separation under Section 10 is a 'decree' within the meaning of Section 2(2) of the Code and is, therefore, subject to first appeal under Section 96 and subject to second appeal under Section 100 of the Code. The short answer to this contention is provided by the decision of a Division Bench of this Court in Harilal v. Lilavati : AIR1961Guj202 . That was also a case relating to the interpretation of Section 28 of the Act and the question which arose in that case was whether an appeal lay against an order awarding permanent alimony under Section 25 of the Act. It was contended on behalf of the respondent that Section 28 itself did not confer any right of appeal against a decree or order made by the Court in any proceeding under the Act but that the right of appeal against such decree or order could be exercised under that Section only if it was conferred by any other law for the time being in force and since the order of the District Judge awarding permanent alimony under Section 25 of the Act was not an order against which an appeal was pro-vided under the Code, no appeal lay from the order to the High Court. This contention was negatived by the Court which took the view that the right of appeal from all decrees and orders made by the Court in any proceeding under the Act was conferred by Section 28 itself and that the intention of the Legislature was not to refer the parties to any other enactment for the purpose of ascertaining whether decrees or orders passed under the Act are appealable or not. The Court pointed out that if any other construction were adopted, the result would be that no decree or order under the Act would be appealable for there is no provision in the Code or in any other law under which an appeal can be filed from a decree or order passed under the Act. K. T. Desai, C. J.. as he then was, delivering the judgment of the Court observed :

'Section 2(2) of the Code of Civil Procedure, 1908, in express terms lays down that the expression 'decree' when used in the said ode means 'the formal expression of an adjudication which as 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.' Order 4, Rule 1 of the Code of Civil' Procedure provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. In Sir Dinshah Mulla's Code of Civil Procedure, 12th Edition, at page 6 under the head 'In the Suit' are set out various proceedings which are not instituted by presenting a plaint with the result that the orders made therein do not constitute decrees within the meaning of the Code. No proceeding under the Hindu Marriage Act, 1955, has to be instituted by presenting a plaint and the expression 'decree' as defined in Section 2, Sub-section (2) of the Code will not cover an adjudication in proceedings instituted under the Hindu Marriage Act, 1955. .......... As we have already indicated above, the Civil Procedure Code provides for appeals from decrees as defined in Section 2, Sub-section (2) of the Code of Civil Procedure. The decrees passed under Sections 9. 10, 11, 12, 13 and 14 of the Hindu Marriage Act, 1955, do not come within the definition of 'decrees' under the Code of Civil Procedure. The orders passed under Sections 24, 25 and 26 of the Hindu Marriage Act are not orders falling within Section 104 and Order 43. Rule 1 of the Code of Civil Procedure. If this interpretation is accepted, the result would be that there would not be any decree or any order under any of the aforesaid sections which would be appealable. This could not possibly he. the intention of the legislature.'

It is clear from these observations that according to the Division Bench, decrees passed under Sections 9, 10, 11, 12, 13 and 14 of the Act did not come within the definition of 'decree' given in Section 2(2) of the Code. This decision of the Division Bench is binding upon us and we must, therefore, lake the view that a decree made by the Court in a petition for judicial separation under Section 10 is not a decree within the meaning of Section 2(2) of the Code but we may stale that even if this decision had no binding authority on us, we should still have been inclined to take the same view on an interpretation of Section 2(2) of the Code The contention that a decree made by the Court in a petition for judicial separation under Section 10 is a 'decree' within the meaning of Section 2(2) of the Code and is, therefore subject to the incidents of first appeal under Section 96 and Second Appeal under Section 100 must accordingly be rejected.

5. The conclusion which follows from this discussion is that a right of second appeal against an appellate decree made by the Court in a petition for judicial separation under Section 10 cannot be found in the Code We must, therefore, turn to the Act and see whether there is any provision in the Act which confers such right of second appeal. Now the only provision which was relied upon on behalf of the appellant in support of the existence of the right of second appeal was Section 28 and the entire controversy between the parties, therefore, centred round the true scope and effect of that provision. Section 28 read as follows:

'28. Enforcement of, and appeal from, decrees and orders: All decrees and orders made by the court in any proceeding under this Ad 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 any law for the time being in force:Provided that there shall be no appeal on the subject of costs only.'

The argument urged oil behalf of the appellant was that the words 'all decrees, and orders' included not only original decrees and orders but also appellate decrees and orders made by the Court in any proceeding under the Act and Section 28, therefore, conferred a right of appeal not only from original decrees and orders but also from appellate decrees and orders and since there was nothing in the Section which imposed any fetter or limitation on [he exercise of the right of appeal, the right of appeal was an unlimited right which could be exercised not only on law but also on facts. The respondent on the other hand urged that having regard to the context in which the provision occurred and particularly the words 'made by the Court' and 'shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction', decrees and orders referred to in Section 28 were original decrees and orders and not appellate decrees and orders. The argument was that the words 'made by the Court' indicated that the Court which was being referred to by the Legislature was the District Court in which a proceeding under the Act might be instituted and that decrees and orders contemplated by the section were, therefore, decrees and orders made by the District Court which would mean original decrees and orders, If decrees and orders, so ran the argument, were intended to comprise appellate decrees and orders as well as original decrees and orders, there would have been no point in introducing the words 'made by the Court' and the only way in which some meaning could be given to those words was by interpreting them as referring to the District Court It was also contended that so far as the first part of the section dealing with enforceability of decrees and orders is concerned, decrees and orders in the context of that part must mean original decrees and orders for the equivalence brought about by the section for the purpose of enforce-ability could not be between appellate decrees and orders made by the Court and decrees and orders of the Court made in the exercise of its original civil jurisdiction: the equivalence could only be between original decrees and orders made by the Court in the exercise of the jurisdiction conferred under the Act and original decrees and orders made by the Court in the exercise of its original civil jurisdiction and if decrees and orders in relation to the first part of the section dealing with enforceability meant original decrees and orders and did not Include appellate decrees and orders, equally in relation to the second part of the section dealing with appeal ability, decrees and orders could not include appellate decrees and orders but referred only to original decrees and orders. It was also urged that even if decrees and orders referred to in the Section included appellate decrees and orders and it was, therefore, held that Section 28 conferred a right of appeal also against appellate decrees and orders, such right of appeal could be exercised only 'under any law for the time being in force' that is, in accordance with Section 100 of the Code of Civil Procedure which governs the procedure, jurisdiction and powers of the Court in dealing with a second appeal against an appellate decree and the limitations set out in Section 100 of the Code also, therefore, affected the exercise of such right of appeal.

6. Now it will be seen on a plain reading of Section 28 that the section consists of two parts. The first part deals with the subject of enforcement of decrees and orders and provides that all decrees and orders made by the Court in any proceeding under the Act 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. The second part deals with the subject of appeals from decrees and orders and says that all decrees and orders made by the Court in any proceeding under the Act may be appealed from under any law for the time being in force Having regard to the structure of the sentence contained in the section it is evident that decrees and orders made by the Court in any proceeding under the Act which are referred to in the first part of the section are the same as decrees and orders referred to in the second part of the section, for they constitute a common subject governing the verbs in both the parts of the section. The scope and content of the words 'decrees and orders made by the Court in any proceeding under this Act' is, therefore, the same in both the parts of the section. If these words include appellate decrees and orders in relation to the first part of the section, they must also include appellate decrees and orders in relation to the second part of the section. Let us, therefore, first examine as to what is the true connotation of these words in relation to the first part of the section. Now it is a well-settled rule of construction that words used by the Legislature must ordinarily be construed according to their plain natural meaning unless there be anything in the context which should induce the Court to construe the words in a different manner. The words 'decrees and orders' according to their plain natural sense include not only original decrees and orders but also appellate decrees and orders. The width and amplitude of these words are indicated by the adjective 'all' which precedes them and this adjective clearly indicates that the Legislature wanted to bring within the compass of the section every decree and order made by the Court in any proceeding under the Act and not to leave out of the ambit of the section any such decree or order. Of course 'decrees and orders' referred to in the section are decrees and orders made by the Court in any proceeding under the Act but even appellate decrees and orders are 'decrees and orders made by the Court in any proceeding under the Act' as much as original decrees and orders. When a decree or order is made by the Court in an appeal preferred from an original decree or order passed in any proceeding under the Act, such decree or order is certainly a decree or order made by the Court in such proceeding. It can no longer be disputed that an appeal is a continuation of the original proceeding and even when a decree or order is passed by the appellate Court in the appeal, the decree or order is a decree or order made in the original proceeding. The decree or order made by the trial Court merges in the decree or order made by the appellate Court and the proceeding stands terminated by the decree or order of the appellate Court. Appellate decrees and orders made by the Court in appeals from the original decrees and orders made by the trial Court in any proceeding under the Act would, therefore, satisfy the description given in the section for they would be decrees and orders made by the Court in the proceeding. The words 'made by the Court' occurring in the section do not present any difficulty against acceptance of this construction. It is not correct to say that this construction would render these words wholly superfluous. It is no doubt true that if decrees and orders referred to in the section include both appellate decrees and orders as well us original decrees and orders, the Legislature might have dispensed with these words for every such decree or order must necessarily he made by the Court but it must be noted that if these words had been omitted, the Section would have been rendered ungrammatical The Legislature wanted to bring about an equivalence between decrees and orders made by the Court in any proceeding under the Act and decrees and orders of the Court made in the exercise of its original civil jurisdiction for the purpose of enforceability and according to the plain dictates of grammar, the Legislature was bound to use the words 'made by the Court' in the first limb of the provision when it used the words 'of the Court' in the second limb of the provision. As a matter of fact the words 'made by the Court' clearly support the view that decrees and orders referred to in the section include decrees and orders made by the appellate Court. If the Legislative intent was to confine the applicability of the section to decrees and orders made by the trial Court, the Legislature would have used the expression 'District Court' and not 'the Court'. It is a well settled rule of construction that if there are two 'expressions which might have been used to convey a certain Intention, but one of those expressions conveys that intention more clearly than the other, it is proper to conclude that if the Legislature uses that one of the two expressions which would convey the intention less clearly, it does not intend to convey that intention at all and in that event it becomes necessary to try to discover what intention it did intend to convey. This rule of construction also shows that when the Legislature instead of using the more appropriate expression, namely, 'decrees and orders made by the District Court' used the expression 'decrees and orders made by the Court' which is wide enough to include not only original decrees and orders but also appellate decrees and orders, the Legislature clearly intended to bring within the scope and ambit of the section appellate decrees and orders as well. The Legislature advisedly used the wide words 'made by the Court' to connote any Court which might have to make a decree or order in any proceeding under the Act at any stage of the proceeding, whether the original stage or the appellate stage and it must therefore follow as a necessary corollary that decrees and orders which form the subject-matter of legislation under the section include not only original decrees and orders but also appellate decrees and orders.

7. When we turn to the other sections of the Act we find that this conclusion is considerably strengthened by a consideration of the provisions enacted in those sections. Let us take for example Section 22 which says that proceedings under the Act shall be conducted in camera if either party so desires or if the Court thinks fit to do and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except with the previous permission of the Court. Now obviously the Court referred to in this section would mean an appellate Court as well as a trial Court. The section applies in relation to a proceeding under the Act pending before the Court and even when an appeal is pending before the appellate Court, the appeal being a continuation of the original proceeding, it is the proceeding under the Act which is pending before the Court. At one stage the proceeding was pending before the trial Court and now the proceeding is pending before the appellate Court. That is why the Legislature used the general words 'the Court' and did not specify any particular Court in relation to which the provision contained in the section must apply. The same is the case in Section 24 where we find that a power is conferred on the Court to award maintenance pendente lite and expenses of proceeding to a spouse when it appears to the Court that he or she, as the case may be, has no independent income sufficient for his or her support and the necessary expenses of the proceeding. Here also the words 'the Court' used in the section are sufficiently wide and generic to include the appellate Court as well as the trial Court and the order contemplated by the section can be made at any stage of the proceeding; by the trial Court at the original stage and by the appellate Court at the appellate stage. If any other view were taken, the extraordinary situation which would arise would be that an order awarding maintenance pendente life and expenses of proceeding can be made in a proceeding before the trial Court but no such order can be made in the appeal by the appellate Court even though the wife or the husband, as the case may be, may have no independent income sufficient for her or his support and the necessary expenses of the proceeding. A similar situation would also arise under Section 26 which deals with the power of the Court to pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children Unless the words 'the Court' are construed to mean not only the trial Court but also the appellate Court, the appellate Court would have no power to make any interim orders with respect to the custody. maintenance and education of minor children. This surely could not have been intended by the Legislature. These are only some of the instances of provisions in the Act which clearly indicate the legislative intent that when the Legislature speaks of the powers of the Court in any proceeding under the Act or of decrees and orders made by the Court in any proceeding under the Act, the Legislature intends to refer both to the trial Court and the appellate Court so as to make provision in regard to both the stages of the proceeding, namely, the original stage and the appellate stage. Moreover if the Legislature chose to enact a section making a provision in regard to enforcement of decrees and orders made in any proceeding under the Act which Section 28 un-doubtedly is, there is no reason why the Legislature should have confined the provision to original decrees and orders and should have left out of account appellate decrees and orders If appellate decrees and orders could be executed without the necessity of a provision such' as Section 28, original decrees and orders could as well be executed and there was no point in enacting a provision specifically limited to execution of original decrees and orders. These considerations fortify us in reading the words 'decrees and orders made by the Court' as including according to their plain and natural meaning, appellate decrees and orders. It was, however, contended on behalf of the respondent that if this construction were placed on the words of the section, the result would be that appellate decrees and orders made by the appellate Court would have to he executed by the appellate Court in the same manner in which original decrees and orders made by the appellate Court in the exercise of its original civil jurisdiction are executable and this would be a highly anomalous position which could never have been intended by the Legislature. Now it is undoubtedly true that the ordinary rule which has been recognised by the Code in execution proceedings is that even where a decree is passed by an appellate Court, the appellate decree is always executed by the trial Court or what may be called the Court of first instance and if the conclusion suggested on behalf of the respondent is right, it would have to be held that Section 28 constitutes a departure from that rule inasmuch as it provides that an appellate decree or order shall be executed by the appellate Court as if it were an original decree passed by that Court. It was however pointed out on behalf of the appellant that this argument of the respondent was not correct for on a true construction, Section 28 did not require that all decrees and orders made by the Court in any proceeding under the Act shall be enforced in the same manner as decrees and orders made by that very Court in the exercise of its original civil jurisdiction. The construction put forward on behalf of the appellant was that Section 28 merely made decrees and orders made by the Court in any proceeding under the Act executable in the same manner as decrees and orders made in the exercise of original civil jurisdiction ordinarily are or, in other words, the section laid down the mode of execution in regard to decrees and orders made by the Court in any proceeding Under the Act by saying that the mode of execution shall be the same which we find provided by law in case of decrees and orders made in exercise of original civil jurisdiction For the purpose of the present appeal it is not necessary for us to adjudicate upon the validity of these rival contentions in regard to the question as to what is the precise scope and effect of this provision regarding enforceability because even if the contention urged on behalf of the respondent is correct, that is no reason why we should refuse to place upon the language of the section the only construction which it can plainly and reasonably bear. It may be that the Legislature intended to effect a departure from the general rule observed by the Code in regard to execution proceedings. That is not a consequence which should-make us hesitate to accept the construction which we ore other wise inclined to place upon the section.

8. If the words 'decrees and orders made by the Court' include not only original decrees and orders but also appellate decrees and orders, it is clear that the provision enacted in the second part of Section 28 makes such decrees and orders appealable. It has already been held by this Court in : AIR1961Guj202 that Section 28 itself confers a right of appeal by using the words 'may be appealed from' and a right of appeal against an appellate decree or order made by the Court in any proceeding under the Act is therefore, clearly provided by the section. The question, however, is what is the nature and extent of tins right of appeal. It was contended on behalf of the appellant that there is no limitation imposed by the section on the exercise of this right of appeal and the right of appeal must, therefore, extend to a full rehearing of the case on facts as well as law and for this submission reliance was placed on a decision of the Supreme Court in Hari Shankar v. Girdhari Lal AIR 1963 SC 698. Now there can be no dispute that, as observed by the Supreme Court in that case, a right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in second appeals arising under the Code of Civil Procedure and, therefore, it must follow that unless there is some provision in the Act which limits the right of rehearing, the right of appeal conferred by the section must be held to embrace rehearing on fact as well as law. But we do not think that the right of appeal conferred by the section is such an unlimited and unfettered right. There is in the section a clear provision which limits the right of rehearing to the grounds set out in Section 100 of the Code. That provision is to be found in the words 'under any law for the time being in force'. The section undoubtedly confers a right of appeal by using the words 'may be appealed from' but that light of appeal is to be exercised 'under any law for the time being in force' The procedure for filing the appeal and the jurisdiction and powers of the Court in dealing with the appeal are governed by the law for the time being in force which would include inter alia the Civil Procedure Code. This Court observed in the case to which we have just referred, namely : AIR1961Guj202 that the words 'under any law for the time being in force' in the section are intended to provide for the forum before which the appeal is to be preferred and they also prescribe the procedure in connection with the appeals which may be filed under the section We may amplify this statement by saying that these words provide not only the procedure for filing the appeal and the forum in which the appeal must be filed but also the jurisdiction and power of the Court in dealing with the appeal so filed. The right of appeal is conferred by the section but the nature and extent of the right of appeal which depend on the procedure, jurisdiction and powers of the Court in dealing with the appeal are governed by the law for the time being in force which includes inter alia the Code This view which we are taking receives considerable support from a recent decision of the Supreme Court in Vidyacgaran v. Khubchand AIR 1954 SC 1099. There the Supreme Court was concerned with UK- question as to what was the true connotation of the expression 'under the Code of Civil Procedure' occurring in Article 156 of the First Schedule to the Limitation Act which provides a period of limitation for an appeal under the Code of Civil Procedure' The question which arose was whether an appeal under Section 116A(1) of the Representation of the People Act could be said to he an appeal under the Code of Civil Procedure so as to be subject to the period of limitation set out in Article 156, Section 116A(2) provided that 'the High Court shall subject to the provisions of the Ad have the same powers, jurisdiction and authority and follow the same procedure with respect to an appeal inter alia under Section 116A(1) as if the appeal were an appeal from an original decree passed by a Civil Court situated within the local limits of its civil appellate jurisdiction ...' The majority of the Judges relying on this section held that though the right of appeal was conferred by Section 116A(1) and not by the Code of Civil Procedure, it was still an appeal under the Code of Civil Procedure within the meaning of Article 156 inasmuch as the procedure, jurisdiction and powers of the Court in dealing with the appeal were governed by the Code of Civil Procedure. Ayyangar J , speaking on behalf of the Chief Justice and himself referred to two decisions, one of the Calcutta High Court in Aga Mohd. Hamadnni v. Cohen, (1886) ILR 13 Cal 221 and the other of the Madras High Court in Ramaswami Pillai v Deputy Collector of Madura, (1920) ILR 43 Mad 51: (AIR 1920 Mad 407) and approved these decisions as correctly laying down that:

'..... to attract this article it was not necessary in order to be an appeal under the Code of Civil Procedure' within the meaning of those words in Article 156 that the right to prefer the appeal should be conferred by the C P C but that it was sufficient if the procedure for the filing of the appeal and the powers of the Court for dealing with the appeal were governed by that Code. For adopting this construction the Court relied on the reference in Article 156 to Article 151 Article 151 dealt with appeals to the High Court from judgments rendered on the original side of that Court. The right to prefer these appeals was conferred by the Letters Patent constituting the respective High Courts, and not by the Code of Civil Procedure, though the Code of Civil Procedure governed the procedure, jurisdiction and powers of the Court in dealing with the appeals so filed.'

Subba Rao J., also observed that the expression 'appeal under the Code of Civil Procedure' in Article 156 meant an appeal governed by the Code of Civil Procedure. It is therefore, clear that when the Legislature speaks of an appeal under a particular statute it does not mean that the appeal must be one, the right to prefer which is conferred by that particular statute, but it is sufficient if the procedure, jurisdiction and powers of the Court in dealing with the appeal are governed by that particular statute. In the present case the right of appeal is undoubtedly conferred by Section 28 but that appeal is expressly provided to be under any law for the lime being in force and the procedure, jurisdiction and powers of the Court in dealing with the appeal must therefore be held to be governed by the law for the time being in force which would include the Code of Civil Procedure. In order to determine what is the jurisdiction of the Court and what are the powers of the Court in dealing with the appeal which may be filed under Section 28, we must consequently turn to the Code of Civil Procedure and see whether it contains any provisions in regard to appeals against appellate decrees and orders So far as appeals against appellate decrees are concerned, we have Section 100 of the Code of Civil Procedure which sets out the grounds upon which the Court hearing such appeal ran interfere with the decree appealed against The same limitation must therefore be held to apply to the jurisdiction and powers of the Court dealing with an appeal preferred under Section 28 against an appellate decree passed in any proceeding under the Act and it must be concluded that the Court hearing such an appeal can interfere only on the grounds set out in Section 100 of the Code of Civil Procedure. We, therefore, reach the conclusion that the right of second appeal conferred by Section 28 is limited to the grounds set out in Section 100 of the Code of Civil Procedure and that the appellant in such an appeal is not entitled to rehearing on facts is well as law.

9. Before we conclude, we must refer to a decision of a single Judge of the Mysore High Court in Dhulappa v. Krishnnbai, AIR 1962 Mys 172. The learned Judge who decided that case also reached the same conclusion which we have done in the present case, but the line of reasoning followed by him was different from the one which has commended itself to us. He interpreted Section 28 to read as follows:

'All decrees and orders made by the Court in any proceeding under this Act may be appealed from in like manner as decrees and orders of the Court made in the exercise of the original civil jurisdiction may be appealed from under any law for the time being in force ' and concluded that according to this interpretation such of the decisions under the Act as are called decrees by the Act itself are appealable in like manner as the decrees of the Court in civil suits are appealable and a second appeal ran, therefore, be sustained against a decree passed in a petition for divorce under Section 13 'f the Act. This decision though it reaches the same conclusion as we have done, suffers, if we may say so with the greatest respect to the learned Judge who decided this case, from two fallacies. One is that it reads the words 'decrees and orders made by the Court in any proceeding under this Act' to mean only original decrees and orders and the other is that it carries the words 'in like manner' which grammatically are confined only to the first part of the section into the second part of the section though no such words occur in the second part of the section. In this connection we might refer to Section 55 of the Indian Divorce Act, 1869, where the language used by the Legislature is that 'AH 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'. In this section the words 'in the like manner' govern not only the words 'shall be enforced' but also the words 'may be appealed from'. This section was before the Legislature when it enacted Section 28 of the present Act and yet when it enacted Section 28 it made a departure in the structure of the sentence and cut up the sentence into two distinct parts,' using the words 'in like manner' only in relation to the first part and not in relation to the second. We may also point out here that even if Section 28 were to be read in the manner suggested in the Mysore judgment, it is difficult to see how a right of second appeal can be spelt out unless the words 'decrees and orders made by the Court in any proceeding under the Act' are read to include appellate decrees and orders. If these words mean only original decrees and orders, no right of second appeal is conferred even by saying that such decrees and orders may be appealed from in the like manner as decrees and orders of the Court made in the exercise of its original civil jurisdiction, for such a provision would refer only to one appeal from the original decree or order and would not comprise a second appeal from the appellate decree or order or a further appeal thereafter. We cannot, therefore, accept the reasoning on which the decision of the Mysore High Court is based though we arrive at the same conclusion by a different process of reasoning.

10. We are, therefore, of the view that a right of second appeal is conferred by Section 28 but that right of appeal is limited to the grounds set out in Section 100 of the Code of Civil Procedure and can, therefore, be exercised only on questions of law and not on questions of fact. But it this be the position it is evident that the appeal must fail. The decision of the learned District Judge is based on findings of fact and there is no question of law involved in this appeal. As a matter of fact when we pointed this out to the learned counsel appearing on behalf of the appellant, he very fairly and frankly stated that it was not possible for him to contend that any question of law was involved in the appeal. The appeal therefore, fails and is dismissed. There will be no order as to costs of the appeal.


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