The petition is dismissed. In view of the circumstances of the case, the parties shall bear their own costs.'
It is in these circumstances that the question falls to be considered whether the husband was entitled to come in appeal when obviously the wife's petition has failed. Learned counsel for the appellant contends that the husband is affected adversely by the decision of the learned District Judge that the parties were still continuing as husband and wife and this judgment would stand against the husband if at all he wants to rehabilitate himself in married life by taking another companion.
6. Learned counsel for the respondent-husband, on the other hand, stresses that it is the ultimate result of the case that should govern the question of appeal ability of the order at the instance of a party in whose favour the order is passed and not the decision on any particular issue that may have arisen in the case. Learned counsel for the respondent maintains that the decision of any issue though against the party would not be adversely affecting him for the reason that it cannot be res judicata.
7. Learned counsel for the appellant has placed reliance on a number of cases, such as Jamndadas v. Udev Ram (1899) ILR 21 All 117. Union of India v. Pearl Hosiery Mills AIR 1'961 Puni 281, Shantilal v. Farid Khan AIR 1962 Raj 99, Surai Bakhsh v. Munnu Lal ATR 1924 Oudh '52, Ebrahim Aboobakar v. Custodian General AIR 1952 SC 319 and Edamma v. Hussainappa AIR 1965 Andh Pra 455.
8. On the other hand, learned counsel for the respondent has placed reliance on Grace Hannah Wingrove v. Arthur Clement Wingrove 1904 Punj LR 296, Run Bahadur Singh v. Lucho Koer (1885) ILR 11 Cal 30l (PC), Midnapur Zamindari Co. Ltd, v. Naresh Narayan AIR 1922 PC. 241, Ali Ahmad v. Amarnath AIR 1951 Puni 444, Asa Bai v. Prabhulal AIR 1960 Rai 304. Commissioners of Calcutta Port v. Bhairadinram AIR 1961 Cal 39 (FB). Mathurabai v. Ram Krishna AIR 1961 Bom 97. K. Publishing House v. Travancore Cochin Government AIR 1952 Trav Co. 38 and Sadhu Ram v. Mohammad Ali AIR 1950 Him Pra 30.
9. To reinforce Ms arguments learned counsel for the appellant also invited attention to Section 28 of the Act and submitted that this being a case under the Hindu Marriage Act will be governed by this special provision which enables the filing of an appeal against every decree or order that may have been passed under the Act, In other words, Section 28 is much wider than Section 96 Civil Procedure Code under which appeals are filed in civil cases. Learned counsel placed reliance on Sarla Devi v. Balwan Singh AIR 1969 All 601. P. C, Jairath v. Amrit Jairath AIR 1967 Puni 148 Kutumba Rao v. Sesharatnamamba AIR 1967 Andh Pra 323 (FB), and Rukhmani Bai v. Kishanlal AIR 1959 Madh Pra 187.
10. It is axiomatic that the right of appeal is a creature of statute, The party has, therefore, to show that he has a right of appeal against any particular decree or order. Then it has to be further shown that the decree or order adversely affects the party, I may refer to some of the cases cited by learned counsel on either side as may be illustrative of the view propounded by them.
11. In AIR 1922 PC 241, an earlier suit had been filed by a Zamindar against his tenant claiming possession of certain chur land. That suit was compromised. After the expiry of the term a fresh, patta and kabulivat were to bp given at a fair rent to be determined. Then subsequently there was litigation between the parlies. The Zamindar filed the suit for Khas possession of certain accretions to chur land. The Zamindar gave notice to terminate the tenancy. The tenant pleaded that he was an occupancv tenant and consequently could not be evicted under the terms at the Bengal Rent Act. When the case went to the Privy Council previous judgment was sought to be used. In that judgment certain findings were against the defendants. In that connection their Lordships expressed their view that their Lordships did not consider that anactual plea of res iudicata for the defendants could be found as the defendants succeeded on other plea and therefore, had no occasion to go further. This opinion of their Lordships shows that a party in whose favour goes the ultimate result of the case is not bound by any finding adverse to him in that judgment and as, such the party cannot go in appeal against that judgment.
12. In AIR 1960 Raj 304, a Division Bench of this Court, while considering the scope of Section 11 Civil Procedure Code, observed that a finding wherein the plaintiff's suit was dismissed could not operate as res iudicata against the defendant because he would have no right of appeal from that, the ultimate judgment being in his favour. In view of this judgment of this Court I need not refer to the other cases cited by learned counsel for the respondent.
13. I may now turn to the cases relied on by learned counsel for the appellant. AIR 1961 Punj 281 may be taken as an illustrative case as it deals with the earlier case of the Punjab High Court reported as AIR 1951 Puni 444 relied on by learned counsel for the respondent. The learned Judges extracted the following observations from Ali Ahmad's case:
'Where a decree is 'absolutely in favour' of a party but some issues are found against him, he has no right of appeal against the finding because he is, 'firstly' not 'adversely affected' thereby, and secondly because such findings are not embodied in and do not form part of the decree. Hence where the plaintiffs suit for injunction is dismissed by the two lower Courts, the defendant would have no right of appeal against the decree passed in his favour merely because he is dissatisfied with a finding in the judgment. Such a finding cannot be said to adversely affect the defendant inasmuch as it would not operate as res iudicata against the defendant in a subsequent suit because the finding must be taken to have been superseded by the decree and thus not having been heard and finally decided.'
After emoting the above observations the learned Judges referred to Section 96, Civil Procedure Code and observed that it did not in terms lay down as to who can file an appeal; it does not prescribe that it is only that person against whom a decree has been passed or against whom a relief has been granted who can come in appeal. Any person who can show that he is aggrieved by the decree can file an appeal against it. The learned Judges pointed out that for determining as to who is an aggrieved person one has to look to all the circumstances of the case and the substance of the decree passed. The learned Judges relied on the following observations of Woodroff J. in Krishna Chandra Goldar v. Mohesh Chandra Saha, (1905) 9 Cal WN 584:
'The Question who may appeal is determinable by the common sense consideration that there can be no appeal when there is nothing to appeal about. It is for this reason that, apart from cases of estoppel, only a Party to the suit at the time the decree is made or his representatives or assigns when brought on the record or an auction-purchaser in an appeal from an order passed in execution, may appeal as they alone can be affected by the decree or order. Again of such parties only those can appeal who are adversely affected by the decree. Usually, only the party against whom a decree is passed, i.e.. the person ordinarilv injuriously affected by the decree can appeal. For the same reason, the person against whom a suit has been dismissed cannot usually appeal against the decree as he is not ordinarily affected, otherwise than beneficially by it. But in some cases a suit may be dismissed as against the defendant and yet the latter may have a right of appeal. It is not because the suit is formally dismissed as against the defendant that no appeal lies but because dismissal is ordinarilv not merely no grievance but an actual benefit, to the defendant. There is in such cases nothing to complain of. If there is, then notwithstanding that the suit is dismissed against him he may appeal.'
Learned counsel for the appellant strongly relies on the above observations. However, in the decree before the learned Judges which fell for consideration there was a direction that the security and the amount deposited by the plaintiff with the defendant No. 2 cannot be withheld by the latter. This direction was held to affect the rights of the appellant adversely and for this reason the right of appeal was sustained in spite of the decree being otherwise not, against him. I need not refer to other cases cited by learned counsel, as they, more or less, propound the same point of view.
14. In the present case. I have set out the ultimate order passed by the learned District Judge which goes to show that the wife's petition for restitution of conjugal rights was dismissed. This means that the petition completely failed and this order was in no wav against the husband as he himself wanted dismissal of the petition, It is true, on the question of the validity of the custom of divorce the learned District Judge has expressed an opinion against the husband and that also indirectly upholds the continuance of marital ties between the parties, nevertheless that finding of the learned District Judge is completely denuded of its vigour by the ultimate order that he has passed. If I were to examine the question of the validity of a custom of divorce, like the present one where the two Parties who were both sui iuris and were not able to continue as husband and wife and that too in spite of efforts at reconciliation by the caste Panchayat and then decided to divorce each other by mutual consent according to the custom prevalent in the community then perhaps I might have held that such a custom would not be unreasonable or against public policy. It is to be observed that in spite of Section 4 of the Hindu Marriage Act, abrogating even customary law, to the extent it goes contrary to the provisions of the Hindu Marriage Act it preserves a right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage vide (Section 29(2) of the Act).
15. I may next turn to Section 28 of the Act which the learned counsel for the appellant relied on. I may read the section;
'Section 28. Enforcement of and appeal from, decrees and orders. All decrees and 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'.
This section, no doubt, makes all the decrees and orders made by the Court under the Act appealable in the like manner as they would be under the law for the time being in force. The present order dismissing the petition under Section 9 is not a decree within the meaning of Section 23 of the Act. It is only an order: nevertheless it could not be appealed against by a party who is not adversely affected by the order. Section 28 of the Act only indicates what can be appealed against but not who can file an appeal. This will be a matter to be governed by the general principles. As I have already observed, merely because the finding of the learned District Judge on one point is against the husband, he cannot be taken to have been adversely affected by it as in law he will not be bound by such a finding; the ultimate result of the case being in favour of the husband.
16. That being so. I am of the opinion that the husband is not entitled to present this appeal which is accordingly hereby dismissed. There will be no order as to costs.