JAGDISH SAHAI,J. - (1.) JUDGEMENT In this First Appeal From Order, which originally came up for hearing before our brother Bishambhar Dayal, a question with regard to the competence of the appeal in this Court was raised. How the question arises would be apparent from the following facts;
(2.) MRS . Swam Pratap, the respondent, filed a petition under S. 10 of the Hindu Marriage Act (hereinafter referred to as the Act) for judicial separation from her husband Major Dal Chand Singh Pratap, the appellant. In these proceedings two applications, one under S. 24 and the other under S. 25 of the Act were made by Mrs. Swam Pratap. By means of the first she claimed some amounts towards the expenses of the proceedings under S. 10 of the Act and by the second she claimed some amount of money towards the maintenance charges of the children of the parties who were living with her. The learned Civil Judge, who was seized of the matter, disposed of the applications mentioned above by means of a single order dated 19th December, 1959 and directed the appellant to pay Rs. 1,000/- to the respondent towards the expenses of the proceeding within one month and further ordered him to pay a sum of Rs. 5,570/- per year to Mrs. Swam Pratap by way of the maintenance charges of the children. It is against this composite order that the present First Appeal From Order has been filed in this Court. The petition under S. 10 of the Act has been valued at Rs. 1,000/-. It was contended before Bishambhar Dayal, J., on the basis of Yudhisthir Singh v. Batauna Devi. 1962 All LJ 432 that the appeal would be to the District Judge. Our brother Bishambhar Dayal, however, was of the opinion that the decision in 1962 2 All LJ 432 was based on its own facts. He, therefore, referred the following question to a larger Bench. "Whether in a petition under the Hindu Marriage Act valued at less than Rs. 1000/- an appeal lies to the High Court or not ?" The reference came up before us for hearing on 21st November, 1963. After having heard the learned counsel for the parties, we were of the opinion that the appeal was incompetent in this Court and answered the question referred to us accordingly. We however, did not give our reasons that day and reserved it for a future date. We are doing so now by means of this opinion.
(3.) SECTION 28 of the Act deals with appeals and decrees and provides that 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 exercise of its original civil jurisdiction are enforced, and appealed from under any law for the time being in force; provided that there shall be no appeal on the subject of costs only Section 96 C.P.C. provides for First appeals against decrees passed by a civil court and S. 104 read with O. 43, R. 1, C.P.C provided for appeals against orders. It is the Bengal, Agra and Assam Civil Courts Act which deals with forums of appeal. Section 21 of that Act reads as follows : "Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie - (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees, and (b) to the High Court in any other case. (2) Save as aforesaid an appeal from a decree or order of a Munsif shall be to the District Judge. (3) Where the function of receiving any appeal which lies to the District Judge under Sub-Section (1) or Sub-Section (2) has been assigned to an Additional Judge, the appeals may be preferred to the Additional Judge. 4. The High Court may, with the previous sanction of the Local Government, direct, by notification in the Official Gazette, that appeals tying to the District Judge under Sub-Section (2) from all or any of the decrees or orders of any Munsif shall be preferred to the Court of such Civil Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly." In the present case, admittedly, the valuation of the petition under S. 10 of the Act is Rs. 1,000/-. Consequently an appeal would be to the District Judge by virtue of the provisions of S. 28 of the Act read with S. 21 of the Bengal, Agra and Assam Civil Courts Act Mr. Jagdish Kishore, who appeared for the appellant, contends that the appeal would lie to this Court and has in that connotation made the following three submissions before us : (1) The effect of S. 3(b) of the Act which defines a "District Court" is to include a Civil Judge also in that definition with the result that a Civil Judge is also a District Judge and consequently an appeal from order of a person having the status of District fudge for purposes of this case, cannot lie to the District Judge. (2) Inasmuch as there is no provision in the Act for valuing a petition under S. 10 of the Act, any valuation made, has got to be ignored. (3) The subject matter of a petition under S. 10 of the Act is incapable of valuation, with the result that the valuation fixed by a party cannot be conclusive of the matter and would not determine the forum of appeal. ;