Bhat, J.:— This case came up before me in revision. A preliminary objection was raised before me that the order against which the petitioner had come to this Court was an appealable order and therefore this revision was incompetent.
2. I heard the arguments of the learned counsel for the parties in this case as to the maintainability of a revision petition. There being divergence of opinion in the different High Courts, I thought it fit to refer the matter to a Division Bench for an authoritative pronouncement on this point. If the order was not revisable but appealable, even then we had the power to treat this revision as an appeal and in that case it was only a Division Bench that could hear the appeal. This factor also influenced me to place the case before a Division Bench. We have heard the arguments of the learned counsel for the parties. It is true that there is a sharp conflict of opinion between different High Courts on the point whether such orders which are obviously of an interlocutory nature passed under the Hindu Marriage Act are appealable or can be challenged by means of revision petition. The conflict is so sharp that even the same High Court has not taken the same view in cases which came for disposal before it at different times.
3. The latest authority cited before us on the point is Snehlata v. Jagdish Dansena, AIR 1964 Orissa 122. This is a Sidgle Bench decision and it holds that such orders are appealable and not revisable under the Hindu Marriage Act. This view is shared by the following authorities Sobhana Sen v. Amar Kanta, AIR 1959 Cal 455; Harilal Purushottam v. Lilavati Gokaldas, AIR 1981 Guj 202.
4. The other authorities which hold that an appeal does not lie against such orders but a division are Siraswathi v. Krishna Murthy, AIR 1960 Andh Pra 30, Prithyirajsingn Mansiogji v. Bai Shivprabha kumari, AIR 1960 Bom 315 and Gopendra Nath v. Prativa Rani, AIR 1962 Cal 455. It is significant to note that AIR 1959 Cal 455 (Supra) which holds that interlocutory orders are appealable was not cited before the single Judge who decided AIR 1962 Cal 455, who held that such orders are revisable.
5. This is the state of conflict between different High Courts and even in different authorities of the same High Court on the point.
6. In our opinion the matter is not so complicated. The revisability or appealability of an interim order under the Hindu Marriage Act can be decided on an interpretation of S. 28 of that Act. This section reads as under:
“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:
Provided that there shall be no appeal on the subject of costs only.”
7. On a simple reading of this section we feel that there is no difficulty about its interpretation. The relevant portion of this section reads that all decrees and orders made by any Court in any proceedings under this Act may be appealed from under any law for the time being in force, and the proviso to this section lays down that there shall be no appeal on the subject of costs only. The proceedings under the Act are to be regulated so far as may be applicable by the Code of Civil Procedure, Section 21 of the Act. The important portion of this section relating to appeals only lays down that decrees and orders under the Act may be appealed from under any law for the time being in force. The Code of Civil Procedure having been made applicable to proceedings under this Act, it means that those orders and decrees from which an appeal lies under the Code of Civil Procedure, shall be appealable and other orders shall be governed by the other provisions of the Code of Civil Procedure i.e, Ss. 104 and 115 and O. 43. If any order passed by a Court hearing an application under the Hindu Marriage Act is appealable under the provisions of S. 104 or O. 43, those orders would be appealable. Thus orders which are not so appealable are by a simple process of reasoning and elimination subject to the revisional jurisdiction of the High Court under Section 115 of the CPC. This section says nothing more and nothing less.
8. Section 90 of the CPC makes every decree passed by any Court exercising original jurisdiction appeal-able to the Court to which appeals lie from its decrees. A decree also has been defined in Section 2(ii) of the CPC and means the formal expression of an adjudication which so far as the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It further lays down that the rejection of the plaint and determination of any question under Ss. 47 or 144 also shall be deemed to be decrees. That definition has to be applied to any matters which are conclusively determined between the parties by the Court hearing cases under the Hindu Marriage Act. Such matters would be considered to be decrees under the Code of Civil Procedure and hence appealable. Similarly those orders which come under S. 104 or O. 43 would be appealable.
9. The other law which is in force relating to appeals is governed by the provisions of the Civil Courts Act (Act XLVI of 1977). Section 34 of this Act lays down the different Courts to which an appeal lies from a decree or order of a subordinate Court, and all decrees of a District Judge are appealable to the High Court. Therefore the plain meaning of the words in Section 28 of the Hindu Marriage Act would be that from such decrees or orders as are appealable under the Code of Civil Procedure. under S. 104 and O. 43, an appeal shall lie to the High Court. Other orders which do not satisfy the definition of a decree or are not enunciated in Section 104 or O. 43 of the CPC, cannot be made the subject-matter of an appeal before the High Court but are revisable under the provisions of Section 115 of the CPC. Section 28 of the Hindu Marriage Act presents no difficulty and we do not find that there is any scope for so much of conflict about its interpretation.
10. If the interpretation put on this section by such authorities as AIR 1964 Orissa 122, AIR 1959 Cal 455 or AIR 1961 Guj 202 (Supra) is accepted it would lead to ridiculous results. According to these authorities every order passed in a proceeding under the Hindu Marriage Act would be appealable. That would mean that every interim order would be appealed from. For instance, if a certain plaintiff is directed to deposit process-fee for a defendant, he could go in appeal against that order. If a witness is not present on a certain hearing and a fresh summons is issued for that witness, the order would be appeal-able. If a counsel for a party wanted time for argument the order would be appealable. This could never be the intention of the law and would reduce the working of the Act to a farce.
11. Now about the proviso to Section 28 of the Hindu Marriage Act, AIR 1964 Orissa 122 (Supra) for instance has taken the view that if all orders were not appealable under the Act there would be no purpose in enacting the proviso which says that no appeal shall lie on the subject of costs only. In our opinion there is nothing in this proviso which cannot be very safely and harmoniously co-related to the interpretation which we put upon this section. This can be illustrated by a simple example. In a certain proceeding under the Act the Court competent to hear the application passes a decree for judicial separation or divorce. At the same time it awards costs of Rs. 250. The party is satisfied, so far as the decree on merits is concerned, it does not want to appeal from it but wants to appeal against the costs only. This proviso puts a limitation that the party cannot go in appeal only on the subject of costs. This is quite consistent with the fact that only decrees and such orders as are appeal-able under the Code of Civil Procedure are appealable and not other orders.
12. We, therefore, hold that the order complain-1 ed of is a revisable order and not an appealable order.
13. Now about the merits of the order we do not think that we should interfere in this case. The trial Court has directed the parties to be present for examination. The learned counsel for the respondent pointed out to us that the petitioner lives in Srinagar and is able to produce medical certificates from Srinagar doctors but refuses to come to Court personally. Under Section 23(2) of the Hindu Marriage Act it is the first duty of a Court to make every endeavor to bring about a reconciliation between the arties. If no settlement is possible then proceedings ave to be taken. Therefore, keeping that provision of the Hindu Marriage Act in view, we think the learned District Judge was perfectly right in asking for the personal attendance of the petitioner. When the parties would be before him in Court, he would try to bring about an amicable settlement. That object cannot be achieved when one of the parties is examined on commission. In our opinion, therefore, the order passed by him is quite correct. We do not find any reason to interfere in this revision petition which is dismissed with costs.
14. The order shall be communicated to the parties by the District Judge, Srinagar.
15. S. Murtaza Fazl Ali, J.:— I agree.
A.I/M.E.S/V.B.B
16. Petition dismissed.