# Smt. Prem Jyoti and others v. Smt. Sushila Goel and another

- **Citation:** (2012) 2 ILRA 986
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-08
- **Bench:** Prakash Krishna, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prem-jyoti-and-others-v-smt-sushila-goel-and-another-42323
- **Pages:** 4

## Headnote

Family Courts Act 1984-Section 19Appeal against order passed by Civil
Court-execution
proceeding
subsequently
transferred
to
Family
Court-shall be treated to be possessed
by competent jurisdiction-appeal against
order passed by execution Court-heldnot
maintainable-except
the
order
passed under Section 7 of Family Court
Act.

Held: Para 9

The Family Courts Act 1984 has been
enacted to provide for the establishment
of family courts with a view to promote
cancellation in, and secure speeding
settlement
of
disputes
relating
to
marriage and family affairs and for
matters connected therewith. Section-7
of the Act deals with the jurisdiction of
2 All] Smt. Prem Jyoti and others V. Smt. Sushila Goel and another
987
family court. Family Court shall be
deemed for the purposes of exercising
jurisdiction to be a district court or, as
the case may be, such subordinate civil
court
for
the
area
to
which
the
jurisdiction of the family courts extends.
Explanation
to
sub
section
one
delineates
the
various
suits
and
proceedings regarding which a family
court has jurisdiction. A family court is
also a civil court and when it exercises
jurisdiction other than the jurisdiction as
mentioned in Section-7 of the Family
Court Act, the order passed in such other
suits
or
proceedings
will
not
be
amendable to appeal under Section 19 of
the Family Courts Act. Only such orders
which are passed by the court exercising
the
jurisdiction
as
enumerated
in
Section-7 will be subject matter of
appeal under Section 19 of the Family
Court Act.
Case law discussed:
(1980) 4 SCC 354

## Text

986 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
therein that the petitioner filed C.B. Case
before the Concillation Officer, Faizabad
through Shramik Kalyan Union, Chini
Mill Nawabganj, Gonda for declaring
him as a seasonal chaukidar in 1993
which was registered as C.B. Case No.
23 of 1993. The Concillation Officer on
2.9.1994 issued directions to keep the
petitioner
in
engagement
in
the
forthcoming crushing season and ensure
the payment of wages. The respondent
challenged the said order before this
Court
through
writ
petition
being
W.P.no. 5616(S/S) of 1994. This Court
by means of order dated 5th April, 2012
quashed the directions issued by the
Concillation Officer and directed the
Concillation officer to proceed further
with concillation proceedings which is
pending consideration.

19. In light of the aforesaid fact,
learned counsel for the respondent
submitted that thus petitioner's claim to
declare
his
status
as
a
Seasonal
Chaukidar is yet to be adjudicated upon.
Therefore, at this stage , until and unless
his status is finally determined, he cannot
claim any benefit arising out of the status
as
claimed
under
the
proceedings
initiated under Section 33-C(2) of the
Industrial Disputes Act.

20. In the light of the observations
made above without disputing the
definition of seasonal workman as given
under the Standing Order, I find that the
petitioner's status of Seasonal Chaukidar
is yet to be determined by the Labour
Court. Therefore, I am of the view that
until and unless same is determined
finally, the petitioner has no right to
claim any benefit arising out of the said
status under Section 33 C(2) of the
Industrial Disputes Act. Therefore, I do
not find error in the award dated
26.10.1996, passed by the Presiding
Officer, Labour Court, Faizabad.

21. Accordingly the writ petition
stands dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2012

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

First Appeal No. - 364 of 2011

Smt. Prem Jyoti and others ...Petitioner
Versus
Smt. Sushila Goel and another

 ...Respondents

Counsel for the Petitioner:
Sri Sami Ullah Khan
Sri V.M. Zaidi

Counsel for the Respondents:
Sri Ram Krishna Mishra

Family Courts Act 1984-Section 19Appeal against order passed by Civil
Court-execution
proceeding
subsequently
transferred
to
Family
Court-shall be treated to be possessed
by competent jurisdiction-appeal against
order passed by execution Court-heldnot
maintainable-except
the
order
passed under Section 7 of Family Court
Act.

Held: Para 9

The Family Courts Act 1984 has been
enacted to provide for the establishment
of family courts with a view to promote
cancellation in, and secure speeding
settlement
of
disputes
relating
to
marriage and family affairs and for
matters connected therewith. Section-7
of the Act deals with the jurisdiction of
2 All] Smt. Prem Jyoti and others V. Smt. Sushila Goel and another
987
family court. Family Court shall be
deemed for the purposes of exercising
jurisdiction to be a district court or, as
the case may be, such subordinate civil
court
for
the
area
to
which
the
jurisdiction of the family courts extends.
Explanation
to
sub
section
one
delineates
the
various
suits
and
proceedings regarding which a family
court has jurisdiction. A family court is
also a civil court and when it exercises
jurisdiction other than the jurisdiction as
mentioned in Section-7 of the Family
Court Act, the order passed in such other
suits
or
proceedings
will
not
be
amendable to appeal under Section 19 of
the Family Courts Act. Only such orders
which are passed by the court exercising
the
jurisdiction
as
enumerated
in
Section-7 will be subject matter of
appeal under Section 19 of the Family
Court Act.
Case law discussed:
(1980) 4 SCC 354

(Delivered by Hon'ble Prakash Krishna, J.)

1. The present appeal has been filed
under Section 19 of the Family Court Act
1984 against the order dated 26th
September,2011 in Execution Case No.
13 of 2009 (Smt. Sushila Goel Vs.
Krishna Mohan Goel and another). The
court below by the order under appeal has
rejected the objections purporting to have
been filed under Section 47 of CPC., by
the appellants herein.

2. The background facts may be
noticed in brief. The decree holder Smt.
Sushila Goel obtained a decree of divorce
from the court of Civil Judge (Senior
Division), Etawah as also decree for
payment
of
maintenance,
in
Case
No.1133/1988 decided on 23rd January,
2008. Under the said decree, it has been
provided that Smt. Sushila Goel, decree
holder is entitled to get a sum of
Rs.10,00000/- as permanent alimony. She
filed the Execution Case No. 14 of 2008
at Etawah. The said decree has been
transferred
to
district
Meerut
and
ultimately it reached to Family Court,
Meerut. Before the transferee court, the
present appellants, namely, Prem Jyoti
and others filed objections under Section
47 CPC claiming that after the passing of
the decree, the judgment debtor has
executed three sale deeds dated 3rd May,
2008, 5th May,2008 and 12th May, 2008
in her favour. She also claims that she is
legally wedded wife of the deceased
judgment debtor. The court below by the
order under appeal has dismissed the
objections on the ground that the sale
deeds are fictitious transactions. The sale
deeds have been executed after passing of
the decree with intention to avoid the
payment of the decreetal amount.

3. When the appeal was taken up, a
preliminary objection with regard to its
maintainability was raised by the learned
counsel for the respondent decree holder.
He submits that the appeal under Section
19
of
the
Family
Court
is
not
maintainable as it arises out of execution
proceedings relating to execution of a
decree passed by the civil court.

4. In reply Sri V.M. Zaidi, learned
Senior Counsel for the appellant submits
that the decree has been transferred to the
Family Court and every order and
judgment passed by family court, except
an interlocutory order, is appealable under
Section
19
of
the
family
court.
Elaborating
the
argument,
it
was
submitted that decree has been transferred
to Meerut in exercise of power under
Section 42 of the CPC.
988 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

5.

We
have
considered
the
respective submissions of the learned
counsel for the parties and perused the
record. It could not be disputed by the
learned counsel for the appellant that the
order has been passed on execution side
of the civil court decree. Section 18 of the
Family Court Act provides for the
execution of decrees and orders passed by
a Family Court. It has been provided that
a decree passed by the Family Court shall
have the same force and affect as a decree
or order of the civil court and shall be
executed in the same manner as is
prescribed by the Civil Procedure Code
for the execution of decrees and orders. It
follows that even a decree passed by the
family court is liable to be executed as a
decree of civil court and the provisions
relating to the execution of decrees and
orders of civil court would apply.

6. Section 42 of Civil Procedure
Code deals with the powers of the court in
executing
transferred
decree.
The
transferee Court shall have the same
powers in respect of transferred decree as
if it had been passed by itself.

7. Section 42 of Civil Procedure
Code has been amended by U.P. Civil
Laws (Reforms and Amendment Act) in
the State of U.P. In Section 42 for the
expression "as the court which pass it"
substituted in place of "as if it had been
passed by itself". The effect of the said
amendment was considered by the Apex
Court in the case of Mahadeo Prasad
Singh and another Vs. Ram Lochan and
others (1980) 4 SCC 354. It has been held
that the effect of such substitution was
that the powers of the transferee Court in
executing the transferred decree became
co-terminus with the powers of the court
which had passed it.

8. In the case on hand, the decree
has been passed by civil court and in any
view of the matter particularly Section 18
of the Family Court, such decree is liable
to be executed as a decree of civil court. It
may be placed on record that even family
court has a power of civil court. Merely
because a civil court decree for the
purposes
of
execution
has
been
transferred to a court having family court
jurisdiction will not in any manner
convert the decree as if passed by family
court or similarly, any order passed on the
execution side by a family court shall not
be treated as an order passed by family
court within the meaning of Section 19 of
the Family Court Act.

9. The Family Courts Act 1984 has
been
enacted
to
provide
for
the
establishment of family courts with a
view to promote cancellation in, and
secure speeding settlement of disputes
relating to marriage and family affairs and
for matters connected therewith. Section7 of the Act deals with the jurisdiction of
family court. Family Court shall be
deemed for the purposes of exercising
jurisdiction to be a district court or, as the
case may be, such subordinate civil court
for the area to which the jurisdiction of
the family courts extends. Explanation to
sub section one delineates the various
suits and proceedings regarding which a
family court has jurisdiction. A family
court is also a civil court and when it
exercises jurisdiction other than the
jurisdiction as mentioned in Section-7 of
the Family Court Act, the order passed in
such other suits or proceedings will not be
amendable to appeal under Section 19 of
the Family Courts Act. Only such orders
which are passed by the court exercising
the jurisdiction as enumerated in Section-
2 All] The District Co-operative Bank Ltd. Jaunpur V The Labor Court, & another
989
7 will be subject matter of appeal under
Section 19 of the Family Court Act.

10. We have taken similar view in
First Appeal No. 46 of 2007 (Rajiv
Madan Vs. Smt. Achala Madan) decided
on 30.7.2012. The relevant paragraph is
quoted below:

We have given careful consideration
to the above submission of the learned
counsel for the appellant but it is difficult
to agree with him. Indisputably, the order
under appeal has been passed on the
execution side by civil court. Even if a
decree or order is passed by the Family
Court for the purposes of execution, the
remedy under section 19 of the Family
Court shall not be available and the only
remedy to an aggrieved party will be to
challenge the order passed by the
executing court in the same manner as is
prescribed by the Code of Civil Court
while executing a decree.

11. In view of the above, we are of
the opinion that the present appeal is not
maintainable. It is dismissed accordingly.

12. At the end, learned counsel for
the appellant submits that the appellant
may be permitted to convert the appeal
into revision. We provide that the
appellant may seek appropriate remedy
before the appropriate forum and seek
condonation of delay.

13. The office is directed to return
the certified copies of the judgment and
order of the court below within a week.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 18865 of 1997

The
District
Cooperative
Bank
Ltd
Jaunpur

 ...Petitioner
Versus
The Labor Court, U.P. at Varanasi and
another

 ...Respondents

Counsel for the Petitioner:
Sri Devendra Pratap Singh

Counsel for the Respondents:
C.S.C.
Sri K P Agarwal
Sri S.N. Dubey
Suman Sirohi
Sri V.K. Singh
Ms. Sumati Rani Gupta
Sri S.K. Singh

U.P. Industrial Dispute Act 1947 Section
33-C-(2)-Award of Labor Court regarding
payment of wages-without adjudication of
reference-order under Section 33-C-(2)
execution
in
nature-in
absence
of
adjudication-order passed u/s 33-C-(2)-
held-exercise of excessive of power-not
sustainable.

Held: Para 14

There being no such determination by a
court of competent jurisdiction with regard
to termination or dispensation of services
of the respondent no.2, the provisions of
Section 33-C (2) of the Industrial Disputes
Act were not applicable and therefore, the
award dated 10.03.1997 suffers from the
vice of excessive jurisdiction and is
accordingly, set aside. The writ petition is
allowed.
Case law discussed:
(1978) 2 SCC in Para No. 4; (1995) 1 SCJ 177;
(2001) 1 SCC 73; (2005) 8 SCC