Kulwant Singh Tiwana, J. - (1.) Natha Singh respondent had filed an application under Sec. 9 of the Hindu Marriage Act, 1955 (hereinafter called the Act) against his wife Smt. Piaro, appellant. The Subordinate Judge 1st Class, Amritsar, after trial passed a decree on 9-12-1974, in favour of Natha Singh. Dissatisfied with the judgment and decree Smt. Piaro filed the present appeal. On Sept. 29, 1915, on the application of Suit. Piaro, M.L. Verma J., directed that Rs. 40.00 per month be paid to Smt. Pairo as maintenance pendente he and Rs. 150.00 as litigation expenses of the appeal. The amount was directed to he paid within two months The respondent failed to comply with the orders dated Sept. 29, 1975 and did not pay any money to Smt. Piaro, who filed Civil Misc. Application No. 2375-C-II of 1976 urging that, as the respondent has wilfully failed to pay the amount to her, as ordered by this Court, the appeal may be allowed. Notice of this application was given to Shri H.L. Sarin, learned counsel for the respondent. No reply was filed to this application. Shri H.L. Sarin stated that the respondent has not means to this amount.
(2.) Shri Harinder Singh Gyani, learned counsel for the petitioner, has placed reliance on single Bench decisions of this Court in F.A.O. No. 28-M of 1969 Smt. Parkasho Vs. Lachhman Singh decided on Oct. 13, 1970 by D.S. Tewatia J., Ram Sarup Vs. Smt. Janak 1972 P.L.R. 933 Smt. Swarno Devi Vs. Piara Ram F.A.O. No. 52-M of 1972, decided on Aug. 23, 1973; , by M. R. Sharma, J. and Smt. Phino Vs. Nachhattar Singh F.A.O. No. 104-M of 1973 decided on Sept. 8, 1976 by P.C. Jain, J. to urge that in the case of deliberate failure of the respondent to make the payment the appeal has to be allowed. Excert in Ram Swaroop's case (supra) which was an appeal filed by the husband and was dismissed by B.S. Dhillon, J. on the failure of the husband to make the payment of the maintenance and expenses of litigation in other three cases the appeals of the wives were allowed on this ground.
(3.) Shri H.L. Sarin, learned counsel for the respondent, has argued that the provisions of the Code of Civil Procedure, by virtue of Sec. 21 of the Act apply to the proceedings taken under the Act. An appeal filed against the judgment and decree passed under the Act according to him, is governed by the Code of Civil Procedure. He has further argued that once the appeal has been admitted it cannot be allowed, in the circumstances as suggested by Shri Harinder Singh Gyani, Counsel for the appellant, as was done in three Single Bench decisions of this Court, referred to above. According to him the appeal has to be heard on merits and then allowed in the manner urged by H.S. Gyani by invoking the provisions of section 151 of the Code of Civil 'Procedure. He has cited Supreme Court decisions in Padam Sen and another Vs. The State of Uttar Pradesh, AIR 1961 S.C. 218, Arjan Singh Vs. Mohinder Kumar and others, AIR 1964 S. C. 993 and Nainsingh Vs. Koonwarjee and others., AIR 1970 S.C. 997 , to support his arguments. With the help of the counsel for the respondent I have gone through the three cases cited by him and find that they are not attracted for application to the facts of the case in hand. In Padam Sen's case (supra) in the matter of accounts one of the parties apprehended that the accounts may not be tempered with and on his application a Commissioner was appointed to seize the account books. Under those circumstances in that case it was held that the Court has no inherent powers under Sec. 151, Code of Civil Procedure to appoint a Commissioner beyond the scope of section 75 of the Code to forcibly seize the books. In Arjan Singh's case (supra) the facts were again different and the impugned order, were against the express provisions of the Code of Civil Procedure. In Nainsiagh's case (supra) the High Court had under its inherent powers set aside the decree which had not been appealed against. The above short resume of these cases shows that the facts of those cases were different from the facts of the case in hand.;