Dr. Mrs. Sarika Akshay Ranade C/O. ... vs Dr. Adkshay Arun Ranade C/O. Shri. ...
2021 Latest Caselaw 6170 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CIVIL APPELLATE JURISDICTION

               FAMILY COURT APPEAL NO.122 OF 2019

DR.MRS.SARIKA AKSHAY RANADE                     )
Aged 40 years, Occupation : Doctor              )
Residing at - C/o. Shri. D. C. Bhagat           )
Ashirvad, Prabhat Road, Lane No.4, Pune.        )...APPELLANT

      V/s.

DR. AKSHAY ARUN RANADE                      )
Aged 43 years, Occupation : Doctor          )
Residing at - C/o. Shri.Arun Laxman Ranade )
Bungalow No.34, Shreesh Society, Hajuri Road)
Opposite LIC, Thane (W)                     )...RESPONDENT

Mr.Abhijit Sarwate, Advocate for the Appellant.
Mr.Omkar Paranjape, Advocate for the Respondent.

                                CORAM   : R. D. DHANUKA &
                                          V. G. BISHT, JJ.

RESERVED ON : 18th FEBRUARY 2021 PRONOUNCED ON : 7th April, 2021

JUDGMENT : (PER : V. G. BISHT, J.)

1 This Family Court Appeal is directed against the

orders passed by the Family Court No.5, Pune on Exh. 77

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(application for appointment of Commissioner) on 16th December

2014, Exh. 285 (application for maintenance and other reliefs

under Sections 24, 25 and 26 of Hindu Marriage, 1955) on 18 th

July 2016, Exh. 391 (application for amendment) on 8 th August

2016 and on Exh. 403 (application under Sections 18, 19(8), 20

and 22 of the Protection of Women from Domestic Violence Act,

2005 (hereinafter referred to as " the Domestic Violence Act" for

the sake of brevity) on 22nd August 2016. By these impugned

orders, the learned Judge of the Family Court partly allowed the

application at Exh. 285 to the extent of granting interim

maintenance to daughter of the appellant-wife and rejected all

the other applications.

2 Before we summarize the subject matter of all those

applications, we deem it appropriate to indicate that those

applications were taken out by the appellant - wife herein in

Marriage Petition being PA No.459 of 2010 under Section 9 of

Hindu Marriage Act, 1955 (for short "the Act") with allied reliefs

by the respondent - husband. We also note from the record that

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said Marriage Petition culminated into dismissal on 16 th

December 2016. It is only after dismissal of the petition, the

appellant-wife by way of present appeal is now assailing the

impugned orders although those orders came to be passed on

various dates, as noted hereinabove, that is during the pendency

of the petition and admittedly exception to those orders were

never taken during the pendency or at any earlier point of time

before the dismissal of main petition or when the petition was

very much on record before the Family Court.

3 The appellant-wife herein moved an application at

Exh. 77 on 8th February 2012 contending therein that she and her

husband had a joint locker bearing No.569 at Buldhana Urban

Co-operative Bank at Prabhat Road Branch, Pune. Her stridhan

and ornaments belonging to Miss Sia i.e. daughter are kept in the

locker, the keys of which are in possession of the husband.

According to her, articles kept in the locker are mentioned in the

list annexed therewith and are the exclusive property of her and

daughter. Since the husband had refused to part with the keys,

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she requested to appoint a Court receiver with a direction to

open the locker in the presence of both the parties, make an

inventory of the articles in the locker and hand over those articles

to her. This application was resisted by respondent-husband by

filing his say (Exh. 121) on 18th March 2014 and out rightly

denied that the articles kept in the locker are the exclusive

property of his wife and daughter and strongly opposed the

appointment of any Court commissioner.

4 The appellant-wife then moved another application at

Exh. 285 on 19th January 2016 under Sections 24, 25 and 26 of

the Act claiming therein permanent alimony, reimbursement of

expenses, enhanced interim maintenance, retention of child

custody and provision for accommodation/residence. This

application was also resisted by the respondent-husband by filing

his say (Exh. 313) by contending that the essential precondition

which is required for claiming maintenance under Sections 24,

25 and 26 of the Act is that she should make out a clear cut case

in the pleadings bonafidely disclosing all her incomes,

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investments, assets and all other relevant facts and has to make

out a case as to how she is unable to maintain herself or her child

out of her own income. Moreover, maintenance of child is not

covered under Section 24 of the Act so also permanent alimony

under Section 25 of the Act as his petition is for restitution of

conjugal rights.

5 The appellant-wife further moved an application at

Exh. 391 on 27th July 2016 seeking amendment of her written

statement. By the proposed amendment she wanted to include in

her written statement certain suggestions appearing in the cross-

examination in criminal proceedings between her and her

husband about ornaments, forcible attempt made by her

husband to take away her daughter from the school,

counter-claim claiming dissolution of marriage on the ground of

cruelty, custody of daughter, permanent alimony and permanent

maintenance and as also other reliefs. This application was also

resisted by the respondent-husband by filing his say on 30 th July

2016. According to him, the proposed amendment was in no

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way related to issues or matters in controversy. Similarly, no

counter-claim can be filed by her by way of amendment of her

written statement as the same was clearly barred by limitation

and also barred due to waiver of alleged rights by her.

6 The appellant-wife then lastly filed an application at

Exh. 403 on 16th August 2016 under Section 18, 19(8), 20 and

22 of the Domestic Violence Act thereby claiming reliefs in the

form of protection orders, directions to the husband to return her

stridhan, monetary reliefs and compensation. This application

was also opposed by the respondent-husband by filing his say on

18th August 2016. According to him, Section 26 of the Domestic

Violence Act does not contemplate seeking of reliefs by filing

such an application but there has to be pleading in respect of

that. He further contended that filing of an application under the

said Act seeking reliefs exclusively under the said Act, especially

when no relief is claimed in the written statement on record is

not contemplated under Section 26 of the Domestic Violence Act

and therefore, the application was not tenable.

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7             The learned Judge of the Family Court after hearing

both the parties on the above noted applications at various

exhibits was pleased to allow Exh. 285 partly and reject

remaining applications.

8 This Court (Coram : K. K. Tated & N.R.Borkar, JJ.) on

13th October 2020 had posed a query to learned counsel for the

appellant-wife as to how the present appeal filed under Section

19 itself is maintainable impugning the interim orders passed by

the Family Court. This Court vide order dated 13th October 2020

directed the appellant-wife to file her written submissions, if any,

along with authorities explaining how the present appeal itself is

maintainable and at the same time also granted liberty to the

respondent-husband to file written submissions, if any, to that

effect.

9 Pursuant to the above direction/order, the appellant-

wife has filed affidavit cum written submissions along with

authorities relied on by her as to how the present appeal is

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maintainable. The appellant-wife has relied on Smt.Sukhrani

(dead) by L.R's and Others vs. Hari Shankar and Others 1,

C.V.Rajendran and Another vs. N.M.Muhammed Kunhi 2,

Satyadhyan Ghosal and Others vs. Smt.Deorjin Debi and

Another3, Rajashri Alias Rajani and others vs. Maria Elsa De

Noronha Wolfango Da Silva4 and Shri Ramo Barman and Others

vs. Smt. Dagripriya Kachari and Others5. Similarly, the

respondent-husband has also filed written submissions along

with copies of the judgments in support of his case to show that

the present appeal is not maintainable. The respondent-husband

placed reliance on Sunil Hansraj Gupta vs. Payal Sunil Gupta6

and Smt.Amishi Milan Honawar vs. Shri Milin Bhavanishankar

Honawar (Coram : R.M.S. Khandeparkar & Anoop V. Mohta, JJ.)7.

10 We have perused the written submissions and as also

the judgments. We have also heard Mr.Sarwate, learned counsel

1 AIR 1979 SUPREME COURT 1436 2 (2002) 7 Supreme Court Cases 447 3 AIR 1960 Supreme Court 941 4 LAWS (BOM) 2010 2 77 5 AIR 1992 GAUHATI 72 6 AIR 1991 BOMBAY 423 7 Family Court Appeal No.7 of 2005 decided on 14th June 2005

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for the appellant-wife and Mr.Paranjape, learned counsel for the

respondent-husband. They have practically reiterated the stand

taken by them in their written submissions.

11 There is hardly any dispute to the fact that parties to

the petition are governed under the provisions of the Family

Court Act. Even in the written submissions the appellant-wife

has contended at paragraph 9 that "Order 43 Rule 1 of the Civil

Procedure Code, 1908 does not contemplate an appeal against

the impugned orders. Further, considering that the proceedings

are from Family Court, being special law, Family Court Act would

be applicable."

12 The preliminary objection sought to be raised on

behalf of respondent-husband to the present appeal is to the

effect that impugned orders having been passed during the

pendency of the proceedings for restitution of conjugal rights and

since it did not determine the rights of the parties upon which

the main dispute would have been decided, it are interlocutory

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orders within the meaning of Section 19(1) of the Family Court

Act and, therefore, no appeal lies under the said provision of law.

The learned counsel for the respondent-husband has placed

reliance on Sunil Hansraj Gupta (supra) and Smt.Amishi Milan

Honawar (supra).

13 The learned counsel for the appellant-wife, on the

other hand, has strenuously submitted that the impugned orders

cannot be termed as "interlocutory orders" as these orders affect

the substantive rights of the appellant-wife and this being so,

impugned orders are not interim orders. Reliance is sought to be

placed on the decision of the Hon'ble Apex Court in case of

Satyadhyan Ghosal and Others (supra).

14 In the above backdrop, Section 19 of the Family Court

Act assumes significance and needs to be understood in proper

perspective. Section 19 reads thus :

"19. Appeal - (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the

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Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 1[or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):

Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991].

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate

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within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.]

(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

15 It does not take much discernment from the plain

reading of the provision that an appeal would lie from every

judgment or order, not being an interlocutory order of a Family

Court to the High Court, both on facts and on law. Sub-section

(4) engrafts revisional power of High Court against the orders

passed by the Family Court. What should engage attention at

once is that even revisional powers so vested in the High Court

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cannot be exercised in relation to the interlocutory order as there

is a statutory bar contemplated in that regard under sub-section

(4). In substance, any interlocutory order passed by the Family

Court is neither appealable nor revisable. This leads to a straight

question as to the implication of the term "interlocutory order".

We do not find anywhere in the Family Court Act having defined

or described the term "interlocutory order".

16 It would be apposite to refer usefully oft quoted

decisions of the Hon'ble Apex Court given in Madhu Limaye vs.

State of Maharashtra8 and V.C.Shukla vs. State9 which were also

referred to in the decisions relied upon by the learned counsel for

the respondent-husband i.e. in Sunil Hansraj Gupta (supra) and

Smt.Amishi Milan Honawar (supra).

17 In Madhu Limaye's case (supra) the Court observed

that "ordinarily and generally the expression "interlocutory

8 AIR 1978 SC 47 9 AIR 1980 SC 962

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order" has been understood and taken to mean as a converse to

the terms "final order". It was further held that an order which

does not deal with final rights of the parties, but either (i) is

made before judgment and gives no final decision on the matter

in dispute but is merely on a matter of procedure, or (ii) is made

after judgment and merely directs how the declaration of rights

already given in the final judgment are to be worked out, is

termed "interlocutory order".

18 In V.C.Shukla's case (supra) after taking resume of

various decisions on this topic, the Hon'ble Apex Court in

paragraph 21 made following observations :

"21 ........Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for................. Four different tests for ascertaining the finality of a judgment or order have been suggested:

(1) Was the order made upon an application such that a decision in favour of either party would determine the main dispute? (2) Was it made upon

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an application upon which the main dispute could have been decided? (3) Does the order, as made, determine the dispute? (4) If the order in question is reversed, would the action have to go on."

In paragraph 23 at page 978 it was held :

"23 Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all......."

After reviewing various authorities, Shri Justice Fazal Ali then

held, at page 982, paragraph 30 :

"30 .....Thus, the Federal Court in its decision seems to have accepted two principles, namely,-

(1) that a final order has to be. interpreted in

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contradistinction to an interlocutory order; and (2) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties."

The Hon'ble Apex Court later, in paragraph 33, amplified these

observations, saying :

(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order; (2) that the concept of interlocutory order has to be explained. in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order."

19 After surveying and taking stock of the various

decisions of the Hon'ble Apex Court on the subject of

interlocutory order, the Division Bench of this Court in Sunil

Hansraj Gupta (supra) has held that :

"Upon review of various decisions of the Supreme Court we put that the essential attribute of an interlocutory order is that it merely decides some

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point or matter essential to the progress of the suit or collateral to the issues sought, but not a final decision or judgment in the matter in issue."

20 Needless to say, the decision in Sunil Hansraj's case

Gupta (supra) was in relation to the order regarding interim

maintenance, which was found to be interlocutory and, therefore,

not maintainable under Section 19(1) of the Family Court Act.

21 Similarly, the decision in Smt.Amishi Milan

Honawar's case (supra) was in relation to an interim injunction

order restraining the wife from preventing the respondent-

husband and other members of his family in having access, use

and utilisation of the Flat No.B-13 in the proceedings for divorce

pending before the Family Court. The Division Bench of this

Court in the above premise held that the impugned order had

been passed during the pendency of the proceedings and cannot

have existence or enforceability after the disposal of the main

proceedings unless it is specifically protected by the Family Court

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at the time of the disposal of the main proceedings. Being so, the

impugned order is an interlocutory order and, therefore, is not

appealable under Section 19(1) of the Family Court Act.

22 Reverting to the facts of the case in hand,

unquestionably the impugned orders had been passed on various

applications referred hereinabove during the pendency of the

proceedings for restitution of conjugal rights at the instance of

respondent-husband. This petition ultimately came to be

dismissed by the learned Judge of the Family Court on 16 th

December 2016. Admittedly, the impugned orders were not

assailed or challenged anytime by the appellant-wife herein

during the subsistence of the proceedings for restitution of

conjugal rights.

23 Now, it is time to apply the four different tests as

expounded in V.C.Shukla's case (supra). The impugned orders,

by no stretch of imagination, would have determined and

decided the main dispute which was essentially a petition for

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restitution of conjugal rights. Even if the impugned orders, had it

been challenged and reversed at early stage i.e. before disposal of

the main proceedings, still the dispute would have gone between

the parties. Succinctly stating, even if these applications had

been allowed by the Family Court, keeping in mind the nature of

proceedings initiated by the respondent-husband, in our

considered opinion would not have concluded the proceedings at

all.

24 The ratio laid down in the case of Smt.Sukhrani

(dead) by L.R's and Others' case (supra) is not applicable to the

case in hand in as much as in the said case during the pendency

of the suit for partition, a reference was made to arbitration and

the Arbitrators gave an award directing payment of certain sum

to the plaintiff to equalize the shares of the two branches. The

trial Court was pleased to set aside the Award. Even the appeal

preferred by the plaintiff was dismissed by the High Court. The

plaintiff did not further pursue the matter at that stage by taking

it in appeal to the Supreme Court but preferred to proceed with

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the trial of his suit. In this factual background, the Hon'ble Apex

Court held that the parties could challenge in Supreme Court in

an appeal against the final judgment in the suit any finding given

by the High Court at the earlier stage in the suit when the Award

made by the Arbitrators was set aside and the suit thrown open

for trial.

25 First of all, the above case was not covered by the

provisions of the Family Court Act and rather was suit for

partition and separate possession of share in the properties.

Secondly, the Award referred to therein was intrinsic to the

subject matter of the suit and therefore could have been very well

re-agitated before the Appellate Court. The said judgment does

not apply even remotely to the facts of this case.

26 We are also of the opinion that the ratio laid down in

the case of Rahul Sainath Patkar (supra) is not available to

appellant-wife. In this case, the plaintiffs filed a suit for

declaration and injunction. The case of the plaintiffs was that

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they were in possession of suit premises either through self or

through their predecessors for the last 29 years and with an

allegation that the defendants had trespassed into the suit

property. The defendants contested the suit and also filed a

counter-claim for recovery of possession of the suit property from

the plaintiffs and for mesne profits. Later on, the defendants

filed an application styling the same to be an application for

rejection of plaint under Order 7 Rule 11(a) and/or (d) of the

Civil Procedure Code (hereinafter referred to as "the Code" for

the sake of brevity).

27 It was contended therein that the suit filed by the

plaintiffs was for declaration simpliciter and that the incidental

prayers in the plaint were only in the nature of interim reliefs

and no prayer by way of further relief was sought rendering the

suit as a suit for simpliciter declaration only. The defendants

further contended that it was incumbent upon the plaintiffs to

have asked for relief of permanent injunction by way of further

relief. Since they had not sought for a relief which was available

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and as the same could not be granted specially when further

relief was barred by law of limitation, the suit was not

maintainable.

28 The plaintiffs therein replied to the said application

and on the same day also filed another application for

amendment of the plaint contending therein that in Prayer clause

(b) relief of perpetual injunction was applied for but by

typographical error it was wrongly stated as temporary

injunction. The plaintiffs, therefore, sought to substitute the word

"temporary" with the word "perpetual" in Prayer Clause (b),

which mistake according to the plaintiffs was patent and obvious.

The learned trial Court, however, did not accept the explanation

given by the plaintiffs and dismissed the application for

amendment filed by the plaintiffs and allowed the application for

rejection of the plaint.

29 The Division Bench of this Court held that the

impugned order was in two parts. The order rejecting the plaint

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was entirely dependent on the order rejecting the application for

amendment. This Court further held that it was a clear case

where the plaintiffs had sought an amendment to correct the

typographical or clerical mistake in mentioning the word

"temporary" instead of the word "permanent" in Prayer Clause

(b). This Court further observed that nobody files a suit for

declaration and temporary injunction and as common knowledge

goes, suits are filed for declaration and permanent injunction.

Even the plaintiffs had valued tentatively the prayer for

injunction. In such a situation, the learned trial Court ought to

have granted the prayer for amendment and in the light of that

rejected the application of the defendants for rejection of the

plaint. This Court ultimately allowed the appeal and as a result

the application for amendment was also granted and rejected the

application for rejection of the plaint.

30 From the above it is more than clear that the

proceedings therein was suit for a declaration and injunction.

Moreover and pertinently enough, the fact of the rejection of the

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plaint depended on the proposed amendment i.e. to say there

was a clear nexus between the proposed amendment and

rejection of the plaint, as sought by the defendants. Here, in the

case in hand, we have already pointed out as to the nature of

proceedings and also various applications moved by the

appellant-wife. The appellant-wife cannot derive any benefit

from the ratio laid down in the case of Rahul Sainath Patkar

(supra).

31 We also would like to deal with the tenability and

maintainability of Exhibit 285 in so far as rejection of prayer of

maintenance to the appellant-wife is concerned, from the

perspective of provisions of Section 24 read with 28 of the Act.

There is no dispute that as far as order of rejection of

maintenance to the appellant-wife is concerned, it is passed

under Section 24 of the Act. Here we must take note of Section

28 of the Act.

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32.   Section 28 reads thus :

"28 Appeals from decrees and orders. — (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(2)Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3)There shall be no appeal under this section on the subject of costs only.

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(4)Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order.]".

33 As noticed hereinabove, the impugned order of

rejection of maintenance pendente lite is made under Section 24

of the Act. Sub-section (2) of Section 28 of the Act unequivocally

signifies that no appeal shall lie against the order passed under

Section 24 of the Act. Only order passed under Section 25 or 26

of the Act not being an interlocutory order shall be assailable

under sub-section (2).

34 From the above, what emerges is that under sub-

section (2) of Section 28, no appeal shall lie to the High Court

against interim orders passed under Sections 24, 25 or 26 of the

Act. Under this sub-section reference to Section 24 is purposely

omitted and this being a significant aspect, it must be held that

legislature wanted to expressly bar an appeal against any order

passed under Section 24 of the Act.

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35            This brings us to test the validity of the submissions

of the learned counsel for the appellant-wife that in view of

Section 105 and Order 41 Rule 33 of the Code, he is entitled to

file the present appeal.

36 According to the learned counsel for the appellant-

wife, Section 105 entitles him to challenge the errors, defects and

irregularities for any order affecting the decision of the case on

the ground of objections in the Memorandum of Appeal which

categorically points out errors, defects and irregularities in the

impugned orders.

37 Section 105 reads as under :

"Section 105. Other orders - (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

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                  (2)     Notwithstanding anything contained in sub-

section (1), where any party aggrieved by an order of remand6 [***] from which an appeals lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."

38 The first part of sub-section (1) provides that no

appeal shall lie from any order unless such right is expressly

given by the Code. But where an interlocutory order is

appealable, the party against whom the order is made is bound

to prefer an appeal against it at once and under the second part

when he appeals against the decree after the final decision, he

can make any error, defect or irregularity in the order affecting

the decision of the case, a ground of objection in the appeal. The

words "in any order" in sub-section (1) indicate that even in the

case of an appealable order provided that it affects the decision

of the case, either an appeal can be filed straightway or it may be

attacked in an appeal from the final decree except in the case of

an appealable order of remand. The latter part of sub-section (1)

means that although an interlocutory order may not be

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appealable as such, its legality and correctness can still be

questioned and assailed in an appeal from the final decree.

39 We have here a peculiar situation. We have already

indicated and it is also an admitted position in the words of the

appellant-wife, if we may say so, that her case is totally governed

by Section 19 of the Family Court Act. We have also explained in

the preceding paragraphs as to how the impugned orders are

interlocutory orders and therefore out of ambit and scope of

Section 19 of the Family Court Act. In the circumstances, we do

not find utility and applicability of Section 105 of the Code.

40 Let us assume for a moment that Section 105 is all

here to assist the cause of the appellant-wife. Still, what is worth

pondering, however, is that whether necessary requisites of

section is fulfilled or not. A party necessarily is not obligated to

challenge order - appealable or otherwise but he can certainly

challenge or attack it, provided that has affected the decision of

the case, at the time of challenging the final decree. In the case

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in hand, it is respondent-husband who has challenged the

dismissal of his case for restitution of conjugal rights. The

appellant-wife herein has not been affected by the said decision

of dismissal and rather the said dismissal is in her favour. It is

also not the case that there was a counter-claim which also met

the fate of dismissal.

41 In Shri Ramo Barman and Others (supra) a question

arose for consideration whether it was open to the parties to

challenge the decision of the trial Court on a preliminary issue

along with other issues in an appeal against the decree of the

trial Court. The learned Single Judge found that the question

does not pose much problem in view of the provision of Section

105 of the Code. The learned Single Judge also held that the

provision makes it clear that in an appeal from a decree, it is

open to the parties to challenge the decree on a preliminary issue

as well as the decision upon all other issues in the case. The

learned Single Judge further held that it was not necessary to

challenge the decision on the preliminary issue separately and

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parties can wait till final decision of the suit, and if aggrieved, it

can file appeal. In such appeal, it can challenge the decision of

the trial Court on the preliminary issue in the very same way as

decision on any other issue.

42 Again the facts of the case (supra) are quite

distinguishable. In the present case with which we are dealing,

no such situation arose where a preliminary issue was framed by

the learned Judge of the Family Court. We, therefore, do not find

that the decision (supra) so relied on by the respondent-husband

is any way useful to him.

43 The learned counsel for the appellant-wife has also

placed reliance on Satyadhyan Ghosal and Others (supra) and

more particularly has referred paragraph 16 of the judgment

wherein it is observed by the Hon'ble Apex Court that an

interlocutory order which had not been appealed from either

because no appeal lay or even though an appeal lay an appeal

was not taken could be challenged in an appeal from the final

decree or order.

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44            We have perused the judgment. It lays down therein

that an interlocutory order is an order which did not terminate

the proceedings and which had not been appealed against either

because no appeal lay or even though an appeal lay an appeal

was not taken could be challenged in an appeal from the final

decree or order. It was observed that interlocutory judgment

which have the force of a decree must be distinguished from

other interlocutory judgments which are a step towards the

decision of the dispute between the parties by way of a decree or

final order. In that case the question of applicability of Section

28 of the original Thika Tenancy Act, 1949 was held to be

interlocutory in nature falling in the latter category. All that we

need to say is that in view of scope and ambit of Section 105

explained by us and in the light of distinguishable facts of

decision (supra) we are unable to persuade us to follow the ratio

laid down therein.

45 On a consideration of the material before us, we find

it difficult to fathom the applicability of Section 105. Thus, seen

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from any angle, the appellant-wife cannot derive strength and

succour from Section 105. Resultantly, we reject the submission

on this count.

46 This brings us to Order 41 Rule 33 of the Code. It

reads thus :

"Order 41 Rule 33 - Power of Court of Appeal. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

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Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order."

47 The object of Order 41 Rule 33 has been explained by

the Hon'ble Apex Court in Choudhary Shahu vs. State of Bihar10

as follows :

"The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the court appealed from. Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower

10 AIR 1982 SC 98

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court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience."

48 Keeping in mind the object of Order 41 Rule 33

propounded by the Hon'ble Apex Court, we reiterate that we are

not faced with a decree of such nature where interference in the

decree is inevitable so as to accommodate and adjust the rights of

the parties before us in tune with justice, equity and good

conscience. At the cost of repetition, we remind ourselves of

dismissal of husband's petition for restitution of conjugal rights

whereby the wife's rights do not need readjustment in any

manner. Here again we go back to Section 19 of the Family

Court Act for all purposes, the scope of which has been dealt

inextenso vis-a-vis nature of the impugned orders.

49 Thus, the circumstances existing on record do not

warrant and necessitate the exercise of discretion conferred

under Rule 33. We find ourselves wanting when it comes to the

exercise of such power.

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50            For the reasons stated hereinabove, we hold that the

present appeal is not maintainable under Section 19(1) of the

Family Courts Act, 1984 against the impugned orders.

51 In the result, we pass the following order :

ORDER

Appeal is dismissed as being not maintainable

with no orders as to costs.

      (V. G. BISHT, J.)                        (R.D.DHANUKA, J.)


52            It is made clear that the order of maintenance passed

by this Court on 6th December, 2019 in favour of the daughter

Miss Sia to continue and is not affected by this order.

      (V. G. BISHT, J.)                          (R.D.DHANUKA, J.)




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