PRAHLADBHAI SATARAMDAS Vs. ASHABAI TRIKAMJI
HIGH COURT OF GUJARAT
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(1.) This is a revision petition made under section 115Civil Procedure Code and it is directed against an order dated 13th December 1962 passed by the learned Civil Judge (Senior Division) Rajkot in Civil Suit No. 601 of 1961 whilst exercising the jurisdiction conferred upon him by the Hindu Marriage Act (No. XXV of 1955) (hereafter called the Act). Two questions fall to be decided in this petition. The first which is raised by Mr. Vyas the learned advocate for the opponent is (i) whether a revision petition lies to this Court and the second raised by Mr. Shukla the learned advocate for the petitioner (ii) whether the learned Civil Judge (Senior Division) had jurisdiction to make the impugned order and if so whether the order suffers from the infirmity that it was illegally or irregularly made in the exercise of that jurisdiction.
(2.) The facts are as follows:-- Petitioner is the husband and opponent is the wife. The parties were married on or about 3rd of December 1954. The parties separated in or about June of 1956. Then opponent filed Civil Suit No 601 of 1961 in the Court of the learned Civil Judge (Senior Division) Rajkot on 16 February 1961 for a decree for judicial separation. In that suit on 18th of April 1962 she made an application for alimony pendente lite and for an order for payment of the expenses of the suit. On 30th of August 1962 the learned Judge made an order directing petitioner to pay a sum of Rs. 45/to opponent to meet the expenses of the suit and to pay a sum of Rs. 30/every month with effect from 18th of April 1962 by way of alimony pendente lite. It is an admitted fact that petitioner did not comply with the above order. He neither paid anything towards the interim maintenance nor did he pay anything towards the expenses of the suit. On 6th November 1962 opponent made an application that the defence of petitioner should be struck off on the ground that he had disobeyed the order dated 30th of August 1962. Petitioner opposed that application by his written statement dated 13th November 1962 and contended that he had not complied with the order aforesaid as he was unable to make any payment. After hearing both the sides the learned Judge passed the impugned order on 13th December 1962 ordering that the defence of petitioner should be struck off. The present revision application is directed against that order.
(3.) The first point which is by way of a preliminary objection is based on section 28 of the Act. That section reads as follows:-- 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 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 submission of Mr. Vyas is that under this section all decrees and orders of the Court exercising matrimonial jurisdiction are appealable irrespective of the fact whether such decrees or orders are or are not appealable under any other law for the time being in force. Mr. Vyas contends that in order that a decree or order made by a matrimonial Court can be made the subject matter of an appeal the only condition which is required to be fulfilled is that it must be made in any proceeding under this Act. On the other hand Mr. Shuklas submission is that every decree or order made by a matrimonial Court is not made appealable. According to him only a decree or order passed under some provision of the Act can be made the subject matter of an appeal. The answer to the aforesaid two rival contentions depends upon the true construction of section 28.;
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