Jan - High Court of Judicature at Allahabad

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8 INDIAN LAW REPORTS ALLAHABAD SERIES [2012the court of competent appellatejurisdiction.Case law discussed:(2006 Alld. C.J. 1936)(Delivered by Hon'ble Sanjay Misra,J. )1. This is an appeal under Section 28of the Hindu Marriage Act 1955, againstthe judgement and order dated 16.11.2011and decree dated 30.11.2011 passed inCase No. 774 of 2007, Brij Kishore vs.Smt. Suman, by Additional Civil Judge(Senior Division), Court No. 2,Bulandshahar. Stamp Reporter hasreported that this appeal is notmaintainable before this Court.2. Learned counsel for the appellanthas submitted that the plaintiff respondenthad filed Original Suit No. 774 of 2007,under Section 13 of the Hindu MarriageAct, which has been decreed by the trialCourt. According to him, since theproceedings were under Section 13 of theHindu Marriage Act, the appeal underSection 19 of the Family Courts Actwould not be maintainable. However,since it is a matrimonial dispute decidedby the Civil Judge in the absence ofestablishment of Family Court inBulandshahar, the appeal would lie to theHigh Court under Section 28 of the HinduMarriage Act, as is provided underSection 19 of the Family Courts Act.3. The question was considered by aFull Bench of this Court in the case ofKiran Bala Srivastava (Smt.) vs. JaiPrakash Srivastava (2006 Alld. C.J.1936). The Full Bench considered thedifference of an appeal under Section 19(1) of the Family Courts Act, whichprovided for an appeal against ajudgement or order of the Family Court. Italso considered the provision of Section28 of the Hindu Marriage Act, whichprovides for an appeal against a decree ororder. It was held that Section 28 of theHindu Marriage Act does not provide forappeal against a judgment, therefore, theanswer to the question referred to the FullBench as to whether an appeal underSection 19 of the Family Courts Actwould lie against an order passed underSection 24 of the Hindu Marriage Act wasgiven in affirmative since the order underSection 24 granting pendente litemaintenance is a judgment and an appealwould therefore, lie under Section 19 (1)of the Family Courts Act. Paragraph 21 ofthe said judgement of the Full Bench isquoted hereunder:"21. What noticeable in sub-section(1) of Section 19 of the Act of 1984, isthat deviating from Section 96 of theCode of 1908 or from sub-section (1) ofSection 28 of the Act of 1955, it providesfor appeals against "judgment". The Codeof Civil Procedure, 1908, does notprovide for appeal against judgments. Itprovides for appeals against decrees andorders. Likewise Section 28 of the Act of1955 also does not provide for appealsagainst judgments. It provides for appealsonly against decrees [see: sub-section (1)]and against certain orders [see: subsection(2)]. The question arises as to whythe legislature made a departure byproviding appeal against judgments also,under sub-section (1) of Section 19 of theAct of 1984. Not that the legislature wasnot aware of the established practice ordid not know the meaning of the wordjudgment, as given by the Apex Court inKhimji's case (supra)."4. The aforesaid clearly indicatesthat Section 28 of the Hindu Marriage Actdoes not provide for appeal against
1 All] Ravindra Kumar Singh and others V. State of U.P. and others 9judgement. It provides for appeal onlyagainst decree and since an appeal underSection 19 of the Family Courts Act liesonly against a judgement or order, noappeal would lie under Section 19 of theFamily Courts Act against a decree. Anappeal against a decree passed by theCivil Judge would lie under Section 28 ofthe Hindu Marriage Act.5. Since in the present case theimpugned judgement and decree havebeen assailed under Section 28 of theHindu Marriage Act and the valuation ofthis appeal is Rs. 10,000/-, the pecuniaryjurisdiction as well as appellatejurisdiction would not be with the HighCourt. An appeal against a decree passedby the original Court under Section 13 ofthe Hindu Marriage Act, would lie beforethe court of competent appellatejurisdiction.6. In view of the aforesaidcircumstances, the report of the StampReporter is accepted and it is upheld. Thisappeal is not maintainable before the HighCourt. The appellant may avail hisremedy under Section 28 of the HinduMarriage Act before the competent courthaving appellate jurisdiction againstdecrees. The period, w.e.f. 16.11.2011(the date when present appeal waspresented before the Stamp Reporter) to12.01.2012 i.e. today, shall be givenbenefit of for the purpose of limitation, incase the appeal is filed under Section 28of Hindu Marriage Act against a decreeby the appellant. This appeal is dismissedas not maintainable before this Court.7. No order is passed as to costs.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: LUCKNOW 24.01.2012BEFORETHE HON'BLE RITU RAJ AWASTHI,J.Misc. Single No. - 84 of 2012Ravindra Kumar Singh and others...PetitionerVersusState of U.P. Thro Secy. Department ofHome and others ...RespondentsCounsel for the Petitioner:Sri Vinay P.Singh RathoreCounsel for the Respondent:C.S.C.Sri N.C.MehrotraSri O.P. Srivastava.Constitution of India, Article 226-General Direction to deposit Fire ArmLicense with dealer-considering LokSabha or Vidhan Sabha election-withoutconsidering individual role regardingapprehensive of danger of violence-heldillegal-withoutbeing written order ofcompetent authority-such directionunsustainable.Held: Para 10"23. Considering the facts andcircumstances of the case these writpetitions are disposed of with thefollowing directions:(1) A writ in the nature ofMandamus commanding the State of U.P.is issued directing that the citizens whohave valid fire arm licenses including thepetitioners may not be compelled todeposit their fire arms in general merelyon the basis that Lok Sabha Election is tobe held in near future.(2) It is also directed that noDistrict Magistrate or District
Page 1 and 2: 1 All] Mohan Singh V. U.P. Rajya Vi
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1 All] Km. Sandhya V. State of U.P.
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1 All] Km. Sandhya V. State of U.P.
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1 All] Madan V. State of U.P. and o
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1 All] Madan V. State of U.P. and o
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1 All] Bal Krishna Awasthi and anot
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1 All] Pramod Kumar V. State of U.P
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Jan - High Court of Judicature at Allahabad

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