Kaviarasan vs K.Hemapriya @ Praveena
2024 Latest Caselaw 19504 Mad

Madras High Court

Kaviarasan vs K.Hemapriya @ Praveena on 17 October, 2024

Author: J.Nisha Banu

Bench: J.Nisha Banu

                                                                             C.M.P.No.2587 of 2024

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 17.10.2024

                                                    CORAM

                               THE HONOURABLE MRS. JUSTICE J.NISHA BANU
                                                and
                              THE HONOURABLE MRS. JUSTICE R.KALAIMATHI

                                             C.M.P.No.2587 of 2024
                                                      in
                                             C.M.A.No.1865 of 2022


                     Kaviarasan                                               ..Petitioner

                                                    Vs.

                     K.Hemapriya @ Praveena                                   ..Respondent



                     Prayer in C.M.P.No.2587 of 2023: The Civil Miscellaneous Petition is

                     filed under Order 41 rule 11 of Civil Procedure Code to restore the Civil

                     Miscellaneous Appeal and set aside the order of dismissal for default

                     made in C.M.A.No.1865 of 2022 dated 23.11.2023.

                     Prayer in C.M.A.No.1865 of 2022: The Civil Miscellaneous Appeal is

                     filed under Section 19 of the Family Court Act, as against the decreetal

                     order and order passed in I.A.No.3/2021 in FCOP No.205 of 2019 dated


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                     Page 1/5
                                                                                   C.M.P.No.2587 of 2024

                     10.03.2022 on the file of Family Court, Vellore.

                                        For Petitioner /Appellant      : Mr.K.Venkatesan

                                        For Respondent/Respondent      : Mr.M.Rajasekar

                                                          ORDER

(The order of the Court was made by J.Nisha Banu,J.)

The above Civil Miscellaneous Petition has been filed to restore

the civil miscellaneous appeal in C.M.A.No.1865 of 2022 which was

dismissed for default on 23.11.2023.

2. The Civil Miscellaneous Appeal has been filed by the appellant/

husband as against the decreetal order and order passed in I.A.No.3/2021

in FCOP No.205 of 2019 dated 10.03.2022 on the file of Family Court,

Vellore.

3. As per Section 19 of the Family Courts Act, an appeal against

the interlocutory application will not lie and an appeal will lie only as

against the judgment or order of the Family Court. Further, in the case of

G.V.N.S.Siva Prasad vs. V.Jyostna Devi made in C.M.A.No.1018 of

2022 dated 27.03.2024, the Division Bench of this Court, after referring

to the judgment of S.Menaka v. K.S.K. Nepolian Socraties and other

cases (Batch) reported in 2024:MHC:1405 (Neutral Citation of Madras

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High Court) and 2024 Live Law (Mad) 126 held that as against the

interlocutory applications/ interim maintenance, only Civil Revision

Petition under 227 of the Constitution of India, would lie and not Civil

Miscellaneous Appeal.

4. Learned counsel for the petitioner/appellant seeks permission of

this Court to withdraw this civil miscellaneous petition with liberty to

file a C.R.P. He has also made an endorsement to that effect in the case

bundle.

5. In the light of the aforesaid judgment and in view of the

endorsement made by the learned counsel for the petitioner/appellant,

this Civil Miscellaneous Petition is dismissed as withdrawn with liberty

to the petitioner/appellant to file a Civil Revision Petition. On filing of

the CRP, for the purpose of limitation, the period spent in prosecuting

the CMA shall be excluded.

6. If the learned counsel for the petitioner/appellant requests for

return of certified copy of the impugned order, the same shall be returned

to him forthwith under due acknowledgement.

                                                                    (J.N.B,J.)       (R.K.M., J.)
                     Index              : Yes / No                               17.10.2024

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                     Internet     : Yes
                     vsi




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                                     J. NISHA BANU, J.
                                                  and
                                    R.KALAIMATHI, J.

                                                         vsi





                                                     in





                                               17.10.2024




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