- (1.) The main question that arise for determination in the present case is as to whether a copy of the decree sheet is required to be filed along with the copy of the judgment in an appeal under sub-section (1) of Section 28 of the Hindu Marriage Act (hereinafter referred to as the Act).
(2.) Briefly, the facts which have given rise to this controversy may be stated. Gurjant Singh appellant filed an application for divorce under Section 13 of the Act in the Court of District Judge, Sangrur, against his wife, Shrimati Nichhattar Kaur, which was dismissed by him on September 4, 1978. He filed an appeal in this Court by attaching a copy of the judgment along with the memorandum of appeal, of October 12, 1978 which was returned to him on October 18, 1978 with a note that a copy of the decree-sheet was not forthcoming. The counsel for the appellant refiled the appeal on November 1, 1978 stating that he could not contact the client as he had gone out of station and a copy of the decree-sheet had not been received. As soon as it was available, it would be filed. Again on November 4, 1978, the Deputy Registrar (Judicial) returned the appeal with an objection that the note dated October 18, 1978 had not been complied with. The counsel refiled the appeal on November 10, 1978, along with a certified copy of the decree-sheet dated September 4, 1978. The appeal was again returned on November 16, 1978 with the objection that the decree-sheet had been filed after expiry of period of limitation and therefore, an application for condonation of delay be filed, if so desired. The appeal was reified by the counsel stating that in view of a Division Bench judgment of this Curt in Daljit Singh v. Smt. Shamsher Kaur, 1969 AIR(P&H) 69, no decree-sheet need be filed. Thereafter, the case was listed on December 19, 1978 before a Division Bench consisting of Hon'ble the Chief Justice and myself and is was admitted. Counsel for the respondent filed the Civil Miscellaneous stating the above facts. He further averred that the appeal could not be filed without the decree-sheet and as the decree-sheet was filed after the expiry of the period of limitation, therefore, it was barred by limitation. He prayed that the order dated December 19, 1978 be recalled and the appeal be dismissed as such.
(3.) The application was listed before the same Bench on August 29, 1980 when it was brought to the notice that there was conflict of authority between two Division Bench judgements of this Court reported as Daljit Singh v. Smt. Shamsher Kaur, 1969 AIR(P&H) 69and Raj Kumari v. Kharaiti Lal,1979 HinduLR 533. The point, being of some importance, was referred to a Full Bench for an authoritative decision. This is how the C.M. has been listed before us. In order to determine the question, two matters are required to be gone into. Firstly, whether the decrees passed under Sections 9, 10. 11, 12 or 13 of the Act constitute decrees within the meaning of Section 2(2) of the Code of Civil Procedure and secondly, whether Order 41 Rule of the Code of Civil Procedure is applicable to the proceedings under the Act. Before dealing with the above matters, it will be proper to refer to the relevant Sections of the Act and the Code. Section 9 of the Act deals with restitution of conjugal rights, Section 10 with petition for judicial separation, Section 11 with void marriages, Section 12 with voidable marriages and Section 13 with divorce. All the sections take of decrees. Section 21 of the Act relates to application of the Code to the proceedings tinder the Act, Section 23 to decrees in proceedings under the Act, Section 28 to appeals from decrees and orders and Section 28-A to enforcement of decrees and orders. The Act was amended by Marriage Laws (Amendment) Act, 1976 (68 of 1976). By virtue of the Amendment Act, Section 28 was amended and Section 28-A was introduced Sections 21, 23, 28 before and after amendment and Section 28-A are reproduced below for ready reference : "21. Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may he, by the Code of Civil Procedure, 1980." "23. (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that- (a) Any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub- clause (h) or sub-clause (c) of clause (ii) of Section 5 is not in any way taking advantage of his or her own wrong or disability for the purposes of such relief, and (b) Where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and (bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence , and (c) The petition (not being a petition presented under Section 22) is not presented or prosecuted in collusion with the respondent, and (d) There has not been any unnecessary or improper delay in instituting the proceeding, and (e) There is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly. (2) to (4) x x x x Section 28 (before amendment) 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: Section 28 (after amendment) (1) All decrees made by the court in any proceedings under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. (2) Orders made by the court in any proceedings under this Act, under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction. (3) x x x x (4) x x x x Section 28-A. All decrees and orders made by the court in any proceedings under this Act shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.";