# Smt. Boby Devi v. Kiran Pal Singh

- **Citation:** (2002) 2 ILRA 441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-08
- **Case number:** First Appeal from order No. 348 of 2002
- **Bench:** R.R.Yadav, Y.R. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-boby-devi-v-kiran-pal-singh-39941
- **Pages:** 4

## Headnote

Family Courts Act 1984- Section 10
readwith order 43 r.(i) (d) CPC- suit for
Restitution of conjugal rights decreed ex
parte - application under order 9 r. 13
rejected-
against
that
Appeal
held
maintainable.

Held - para 8 and 9

There is yet another reason to arrive at
the aforesaid conclusion. Sub Section (1)
of Section 19 of the Family Courts Act,
1984 provides that save as provided in
sub- section (2) and notwithstanding
any other law, an appeal shall lie from
every judgement or order, not being an
interlocutory order of a Family Court to
the High Court both on facts and on law.
From bare reading of sub section (1) of
Section 19 of the Family Courts Act, it is
crystal
clear
that
an
appeal
is
maintainable against every judgement or
order passed by a Family court provided
it is mot an interlocutory order. As a
matter of fact, an appeal is prohibited
against interlocutory order and consent
decree or order passed by Family Courts.
Case law discussed:
AIR 1978 SC 47, AIR 1933 PC 58
AIR 1970 SC 406

## Text

http://www.allahabadhighcourt.nic.in
2 All] Smt. Boby Devi V. Kiran Pal Singh
441
In the result both the writ petitions
are allowed. Order accordingly. However,
in the facts and circumstances of the case,
the parties shall bear their own costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.7.2002

BEFORE
THE HON'BLE R.R.YADAV, J.
THE HON'BLE Y.R. TRIPATHI, J.

First Appeal from order No. 348 of 2002

Smt. Boby Devi

 ...Appellant
Versus
Kiran Pal Singh

 ...Respondent

Counsel for the Appellant:
Sri K.M. Garg
Sri Amit Daga

Counsel for the Respondent:

Family Courts Act 1984- Section 10
readwith order 43 r.(i) (d) CPC- suit for
Restitution of conjugal rights decreed ex
parte - application under order 9 r. 13
rejected-
against
that
Appeal
held
maintainable.

Held - para 8 and 9

There is yet another reason to arrive at
the aforesaid conclusion. Sub Section (1)
of Section 19 of the Family Courts Act,
1984 provides that save as provided in
sub- section (2) and notwithstanding
any other law, an appeal shall lie from
every judgement or order, not being an
interlocutory order of a Family Court to
the High Court both on facts and on law.
From bare reading of sub section (1) of
Section 19 of the Family Courts Act, it is
crystal
clear
that
an
appeal
is
maintainable against every judgement or
order passed by a Family court provided
it is mot an interlocutory order. As a
matter of fact, an appeal is prohibited
against interlocutory order and consent
decree or order passed by Family Courts.
Case law discussed:
AIR 1978 SC 47, AIR 1933 PC 58
AIR 1970 SC 406

(Delivered by Hon'ble R.R. Yadav, J.)

1. The present appeal is filed under
section `19 of the Family Courts Act
against the order dated 14.5.2002 passed
by the Family Court, Meerut whereby the
Family Court has rejected the application
of the appellant moved under order IX
Rule 13 C.P.C. read with Section 151
C.P.C.

2. When the aforesaid appeal was
presented in the Registry, the office has
raised an objection to its maintainability
in view of section 19 (5) of the Family
Courts Act.

3. The learned counsel for the
appellant, Sri K.M. Garg contended that
the present appeal is maintainable within
the meaning of section 19 of the Family
Courts Act and the office report deserves
to be overruled.

4. We have given our thoughtful
consideration to the argument raised by
Sri Garg, learned counsel for appellant
and we are of the opinion that there is
substance in the argument raised by the
learned counsel for appellant. The office
report deserves to be overruled for the
reasons given here in below.

5. A close scrutiny of section 10 of
Family Courts Act clearly provides that
subject to the other provisions of this Act
and the Rules the provisions of Code of
Civil Procedure, 1908 and of any other
law for the time being in force shall apply
to the suits and proceedings other than the
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
442
proceedings under Chapter IX of the Code
of Criminal Procedure, 1973 before a
Family Court and for the purpose of the
said provisions of the Code, Family Court
shall be deemed to be a civil court and
shall have all the powers of such court.

6. It is evident from perusal of
Section 10 of Family courts Act that
provisions of Civil Procedure Code are
applicable to the proceedings before the
Family Courts. It would be pertinent to
observe here that provisions encoded in
Civil Procedure Code are based on
principle of natural justice and fair play,
hence
all
the
provisions
of
Civil
Procedure Code are made applicable to
the proceedings before Family Courts
within the meaning of Section 10 of the
Family Courts Act. It is true that right to
file an appeal is creation of a statute,
therefore, the controversy involved in the
present case deserves to be examined with
reference to statutory provisions.

7. Once it is found that all the
provisions of Code of Civil Procedure are
applicable to the proceedings before
Family Courts and the Family Courts are
to act as a civil court then by corollary of
reasons an appeal against the order
impugned dated 14.5.2002 is maintainable
within the meaning of clause (I) of sub-
section (1) of Section 104 of C.P.C., read
with sub- rule (d) of Rule 1 of Order
XLIII which provides that an appeal shall
lie
against
an
order
rejecting
an
application moved under Order IX Rule
13 C.P.C. , to set aside a decree passed
exparte. It is held that if a suit filed under
Section 9 of the Hindu Marriage Act for
restitution of conjugal right is decreed
exparte by Family Court then aggrieved
party is entitled to move an application to
recall such exparte decree. Since in the
present case Family Court has rejected the
application moved under Order IX Rule
13 CPC and declined to recall exparte
decree, therefore, in such a situation
against rejection of application moved
under Order IX Rule 13 CPC, an appeal is
maintainable within the meaning of clause
(I) of sub- section (1) of Section 104 CPC
read with sub rule (d) of Rule 1 of Order
XLIII which provides that an appeal shall
lie
against
an
order
rejecting
an
application moved under Order IX Rule
13 CPC to set aside a decree passed
exparte.

8. There is yet another reason to
arrive at the aforesaid conclusion, Sub
section (1) of Section 19 of the Family
Courts Act, 1984 provides that save as
provided
in
sub-
section
(2)
and
notwithstanding anything contained in the
Code of Civil Procedure or in the Code of
Criminal Procedure or in any other law,
an appeal shall lie from every judgement
or order, not being an interlocutory order
of a Family Court to the High Court both
on facts and on law.

9. From bare reading of sub section
(1) of Section 19 of the Family Courts
Act, it is crystal clear that an appeal is
maintainable against every judgement or
order passed by a Family Court provided
it is not an interlocutory order. As a
matter of fact, an appeal is prohibited
against interlocutory order and consent
decree or order passed by Family Courts.

10. Now the next core question
which is to be determined relating to
maintainability of the instant F.A.F.O.
would be what is correct interpretation of
expression
'interlocutory
order'
used
under sub section (1) of Section 19 of
Family Courts Act. It is submitted by the
http://www.allahabadhighcourt.nic.in
2 All] Smt. Boby Devi V. Kiran Pal Singh
443
learned counsel for the appellant that
generally the expression 'interlocutory
order' is taken to mean as a converse of
the term 'final order'. In support of his
aforesaid contention he placed reliance on
a decision rendered by Apex Court in the
case of Madhu Limaye Vs. State of
Maharastra,
reported
in
AIR
1978
Supreme Court 47.

11. In our considered opinion the
connotation 'interlocutory order' used
under sub section (1) of Section 19 of
Family Courts Act means if Family Court
in exercising its power passed an order in
a way allowing further action to continue
in a suit or proceeding before it then such
order would be termed as 'interlocutory
order' but on the other hand if by an order
passed by Family Court the lis between
the parties is finally stood disposed of an
nothing is left to be decided further such
orders would be termed as 'final order'
and would be appealable under sub
section (1) of Section 19 of said Act.

12. Our aforesaid view is buttressed
from the decision rendered by Supreme
Court in the case of Madhu Limaye
(supra). The relevant paragraph 14 of the
aforesaid decision is quoted herein below
for ready reference which reads thus:

"In
passing,
for
the
sake
of
explaining ourselves, we may refer to
what has been said by Kania C.J. in
Kuppuswami's case (1947 FCR 180 at P.
187) (AIR 1949 FC 1 at p. 3) by quoting a
few words from Sir George Lowndes in
the case of Abdul Rahman V. D.K. Casim
& sons, 60 Ind App 76: (AIR 1933 PC
58). The learned Law Lord said with
reference to the order under consideration
in that case. The effect of the order from
which it is here sought to appeal was not
to dispose finally of the rights of the
parties. It no doubt decided an important,
and even, a vital issue in the case, but it
left the suit alive, and provided for its trial
in the ordinary way. Many a time a
question arose in India as to what is the
exact meaning of the phrase ' case
decided' occurring in S. 115 of the Code
of Civil Procedure. Some High Courts
had taken the view that it meant the final
order passed on final determination of the
action. Many others had, however, opined
that even interlocutory orders were
covered by the said terms. This Court
struck a mean and it did not approve of
either of the two extreme lines. In
Baldeodas
V.
Filmistan
Distributors
(India) Pvt. Ltd. AIR 1970 SC 406 it has
been pointed out (at page 410):

13. "A case may be said to be
decided, if the Court adjudicates for the
purposes of the suit some right or
obligation of the parties in controversy."

14. We may give a clear example of
an order in a civil case which may not be
a final order within the meaning of Art.
133 (1) of the Constitution, yet it will not
be purely or simply of an interlocutory
character.
Suppose
for
example,
a
defendant raises the plea of jurisdiction of
a particular Court to try the suit or the bar
of limitation and succeeds, then the action
is determined finally in that Court. But if
the point is decided against him the suit
proceeds. Of course, in a given case the
point raised may be such that it is
interwoven and inter-connected with the
other issues in the case, and that it may
not be possible to decide it under O. 14 R.
2 of the Code of Civil Procedure as a
preliminary point of law. But if it is a pure
point of law and is decided one way or the
other, then the order deciding such a point
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
444
may not be interlocutory, albeit may not
be final either. Surely, it will be a case
decided, as pointed out by this Court in
some decisions, within the meaning of S.
115 of the Code of Civil Procedure. We
think it would be just and proper to apply
the same kind of test for finding out the
real
meaning
of
the
expression
'interlocutory order' occurring in S. 397
(2).

15. In view of what we have
discussed hereinabove, office report is
hereby overruled and it is held that the
present appeal is maintainable. A copy of
the order passed today be placed before
Stamp Reporter to avoid inconvenience to
the Bar on the aforesaid issue in future.

Heard the learned counsel for the
appellant on merits at admission stage.

Admit.

Issue notice.

16. Meanwhile the execution and
implementation of the exparte decree
dated 3.5.2001 passed by Family Court in
Case No. 604 of 2002 between the parties
shall remain stayed till further order of
this Court.

17. After dictation of judgement the
members of the Bar present in Court
made a request to make the judgement
reportable. The request is allowed and
judgement is made reportable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD JANUARY 23, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.

Civil Misc. Application No. 15589 of 2001

Dr. Manju Verma

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Assem Chandra

Counsel for the Respondents:
Sri N.P.Srivastava
Sri R.K. Srivastava
Sri K.C. Sinha
Sri H.K. Misra
Sri Balram Singh

Amalgamation Order- Clause 14 - It does
not take away the power of the Chief
Justice, to exercise his discretion and
pass orders in any case or class of cases
arising within the area on Oudh to be
heard
at
Allahabad-
the
power
to
exercise the discreation vested in the
Chief Justice under the second proviso to
paragraph 14 of the order shall be so
exercised as to direct that the present
writ petition, which has been instituted
and filed at Lucknow Bench be directed
to be heard at Allahabad. (Held in
paragraph nos. 31 and 32)

This is a fit and appropriate case, where
order should be made for hearing of the
writ petition at Allahabad. The petition
under Clause 14 of the Amalgamation
Order is allowed and the writ petition,
being writ petition no. 1678 (SB) of
1998, Dr. Manju Verma vs. State of UP
and others, which has been filed at
Lucknow
Bench
is
directed
to
be
transferred to Allahabad for hearing,
which shall be listed for hearing before
the appropriate court.