Binod Kumar Roy, Lakshmi Bihari, JJ. - (1.) This is an appeal under Section 19 (1) of the Family Courts, Act against the order dated 7.9.1999 passed by Sri Z. Khan, Judge. Family Court. Agra, rejecting the appellant's plaint registered as Original Suit No 304 of 1997 under Order VII, Rule 11, Code of Civil Procedure on account of it having been filed beyond the prescribed period of 3 Years limitation as envisaged under Article 58 of the Limitation Act. Under this section, an appeal lies against the judgment and order and not against the decree. Even though under the Code of Civil Procedure, an order rejecting the plaint is a decree, in view of sub-section (1) of Section 19, the application filed for grant of time for filing a certified copy of decree at the time of hearing of the appeal is thus dismissed.
(2.) Incidentally the Appellant's Recall application dated 6.10,1999 seeking review of the order dated 12.5.1992 dismissing his earlier First Appeal No. 139 of 1992 has also been placed before us which we heard along with this appeal.
(3.) It appears that the respondent filed Suit No. 8 of 1989 against the appellant for grant of maintenance under Section 125 of the Code of Criminal Procedure claiming, inter alia, that she was married with him on 7.12.1988 ; that she has followed her duties as a faithful wife but later on it transpired that he is squandering his whole income in drinking wine and gambling ; at the time of her marriage goods worth Rs. 40,000 were given to him but he along with the members of his family has been pressurising for giving a sum of Rs. 30.000 in regard to which she expressed her inability and thereafter he started misbehaving her by indulging in cruelty and assault in January, 1989 ; he also snatched her jewellery and clothes and hence this action for giving her a sum of Rs. 500 towards maintenance. Despite notice, he did not appear to counter the proceedings. After holding that the notice was validly served, the proceedings continued ex parte. She examined herself as A. W. 1 in support of her prayer. Vide order dated 16.3.1990, the Court concerned accepted her testimony and directed the appellant to pay a sum of Rs. 500 towards maintenance. 3.1. The appellant on 11.10.1991 filed an application for setting aside that order dated 16.3.1990. Vide order dated 25.1.1992 the Appellant's application dated 11.10.1991 was dismissed. The appellant moved this Court in First Appeal No. 139 of 1992 challenging the orders dated 16.3.1990 as well as 25.1.1992 both as it appears from the order dated 12.5.1992 passed by this Court while dismissing that appeal. The Division Bench while dismissing the appeal had held to the following effect : (i) The appeal against the order dated 16.3.1990 is barred by limitation as no application under Section 5 of the Limitation Act has been filed for condoning the delay occurred in its filing in so far as it is against the said order. It is thus liable to be dismissed as barred by limitation. (ii) The Court below rightly rejected the application of the appellant for setting aside the ex parte order, which was also belated when it was moved on 11.10.1991 as there was no valid reason assigned by the appellant for this delay. 3.2. The appellant thereafter filed the instant Suit No. 304 of 1997 in the Court of Judge, Family Court. Agra, under Section 34 of the Specific Relief Act, 1963 read with Section 7 of the Family Courts Act. 1984, for two declarations : (i) It be ordered that there was no marriage between him and the respondent according to law, and (ii) It be declared that the respondent is not entitled for grant of maintenance from him. By the impugned order, the suit has been dismissed as being barred by limitation in terms of Article 58 of the Limitation Act.;