HIGH COURT OF KERALA
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(1.) When a suit for recovery of gold ornaments and money entrusted to the defendants as parental share at the time of marriage is decreed by the Munsiffs Court before establishment of the Family Court Act, whether appeal will lie to this Court as Mat. Appeal as provided under S. 19 of the Family Court Act, 1984 (hereinafter referred to as the Act) if the Family Court was established before the appeal period was over, is the question considered in this order. As far as facts of this case are concerned, the appellant in this case filed a suit before the Munsiffs Court for recovery of gold ornaments and money entrusted to defendants as parental share at the time of marriage. The suit was decreed in part only. The judgment was pronounced on 25.6.1998. The certified copy was ready on 3.6.1999. After passing of the decree and before filing of the appeal, the Family Court was established at Kottayam. Therefore, contending that appeal will lie under S. 19 of the Act, appeal was filed before this Court. Registry raised objection stating that since the suit was disposed of on 25.6.1998 before establishment of the Family Court at Kottayam, appeal suit has to be filed before the appropriate court and not in High Court under S. 19 of the Family Court Act.
(2.) On establishment of the Family Court all proceedings covered under S.7 of the Act has to be transferred to the Family Court. S. 8(c)(ii) of the Act provides that every suit which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall be transferred to such Family Court as the date on which it is established. But in this case, the suit was already disposed of before the establishment of the Family Court at Kottayam. However, certified copy was issued only after establishment of the Family Court. S. 19 of the Act provides for appeal. S. 19 (1) reads as follows:
19. Appeal: - (1) Save as provided in sub-s. (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 1974) or 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.
(3.) The contention of the appellant is that since the appeal was filed after the establishment of the Family Court at Kottayam, appeal would lie to the High Court under S.19 of the Act. In support of the above proposition, the learned counsel for the appellant relied on the decision of a Division Bench of this Court in Devaki v. Chandrika ( 1997 (2) KLT 746 ). The Division Bench in the above case held that when an ex parte decree was passed with respect to a matter to be decided by a Family Court, by a civil court prior to the establishment of the Family Court and if subsequently the Family Court is established, petition to set aside the ex parte decree will lie only before the Family Court. The appellant also relied on the decision of this Court in Kunju Beevi v. Syndicate Bank ( 1999 (2) KLT 245 ) wherein on identical provisions in Recovery of Debts due to Banks and Financial Institutions Act, 1993 this Court held that if a suit filed by the bank for recovery of the amounts exceeding Rs. 10 lakhs is decreed by the court before the introduction of the Act, the petition to set aside ex parte decree has to be filed before the Tribunal established under the above Act. Learned counsel for the appellant also relied on the decision of the Full Bench of this Court in Glenny v. The Catholic Syrian Bank Ltd. ( 2003 (2) KLT 973 (FB)). The Full Bench was considering the question whether the Tribunal constituted under that Act has got jurisdiction to set aside an ex parte order which was passed by a civil court before the Tribunal was established. The Full Bench held that eventhough general law is that court which passed the ex parte order alone can set aside the same in view of S.17(1) and 18 and since the civil court has no jurisdiction after establishment of the Tribunal, a petition to set aside an ex parte order passed by a civil court can be considered by the Tribunal after the establishment of the Tribunal under the Act. During the course of discussion the Full Bench held as follows:
........ Lastly, it may also be mentioned that S. 20 confers the right to file appeals before the Appellate Tribunal. This power relates to not only the orders actually passed by the Tribunal but even to those deemed to have been made by a Tribunal. Does it not mean that even a Decree passed by the Civil Court shall be deemed to have been passed by the Tribunal It is a well settled cannon of interpretation that the words of a statute cannot be ignored by the Court. They have to be given some meaning and content. Still further, it is also settled that if the statute creates a fiction, then all those circumstances, which are necessary for giving the fiction a full meaning and content have to be assumed to exist ..........
It is submitted by the learned counsel for the appellant that since similar provisions are made in the Family Court Act also, judgment and decree of the court below passed before establishment of the Family Court should be deemed to be the judgment and decree of the Family Court and, therefore, appeal can be filed under S. 19 of the Act before the High Court.;
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