AO/281/2023
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             IN THE HIGH COURT OF UTTARAKHAND
                                  AT NAINITAL
                   HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                          AND
                      HON'BLE SRI JUSTICE RAKESH THAPLIYAL

                   APPEAL FROM ORDER NO. 281 OF 2023
                             02ND AUGUST, 2023
BETWEEN:
Smt. Priyanka Gupta                                            .....Appellant.
And

Ankit Gupta                                                    ....Respondent.

Counsel for the Appellant : Mr. Abhishek Verma, learned counsel.

Counsel for the Respondent : Mr. Piyush Garg, learned counsel.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

An interesting issue arises in the present appeal

with regard to the maintainability of this appeal before this

Court.

2. The issue of maintainability arises in view of the

fact that the order impugned by the appellant under Section

19 of the Hindu Marriage Act, was passed by the Family

Court, Bulandsahar, Uttar Pradesh on 27.04.2023. The

application seeking recall of the said order was also dismissed

by the Family Court, Bulandsahar on 03.05.2023. Thereafter,

vide order dated 08.05.2023, the Supreme Court transferred

the proceedings in the divorce case preferred by the

respondent- husband before the Family Court, Bulandsahar to

the court of competent jurisdiction at Haridwar, Uttarakhand.

The proceedings, therefore, now stand transferred to the

Family Court, Haridwar.

3. Since the orders impugned in the present appeal

were passed by the Family Court, Bulandsahar, which falls in

the State of Uttar Pradesh, we had doubts whether the appeal

against the said orders would lie before the Allahabad High

Court, or before this Court, under Section 19 of the Family

Courts Act.

4. On that aspect, we have heard learned counsels.

5. Our attention has been drawn to Section 105 of the

Code of Civil Procedure by Mr. Garg. The relevant portion

thereof reads as follows:-

"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".

6. It is argued by Mr. Garg that, orders from which no

appeal specifically lies, could still be questioned in an appeal

arising from the final judgment, or decree.

7. That being the position, if no appeal were to be

preferred against the impugned orders, or this Court were not

to entertain the present appeal, and a final decree/ judgment

is passed against the appellant, the appeal against the final

judgment & decree would still be maintainable before this

Court against, and at that stage, the orders impugned in the

present appeal could also be challenged, and appealed

against before this Court.

8. The argument of Mr. Garg is that it would be

incongruous, if two High Courts were to exercise the appellate

jurisdiction in respect of the same orders. Therefore, the

present appeal would lie before this Court.

9. Learned counsels submit that they have not been

able to find any decision dealing with the aspect raised by us

specifically. Though, there are cases which state that once a

case is transferred from one State to another, the appeal

would lie before the Superior Courts/ High Courts, which

exercise the appellate jurisdiction in respect of the orders

passed by the Transferee Court

10. We may refer to the judgment of the Madras High

Court in the case of "Kongandra Appayaa and others vs.

Kongandra Kuttappa and others, AIR 1921 Mad 687

(1). This decision has been followed by the Allahabad High

Court in the case of M/s Bata India Limited & others vs.

Vth Additional District Judge, Agra & others, (1999) 2

AWC 999; 1999 All LJ 775.

11. We find merit in this submission and accept the

same.

12. We are, therefore, inclined to entertain the present

appeal.

13. By the impugned orders, the right of the appellant-

wife to file her written statement was closed by the Family

Court, and her application to seek recall of the said order was

also rejected. The said orders materially affect the rights of

the appellant- wife, and causes serious prejudice to the

appellant.

14. Mr. Garg fairly does not oppose the present appeal,

but submits that the proceedings before the Family Court be

expedited.

15. In the light of the aforesaid, we allow the present

appeal and set-aside the impugned orders.

16. The appellant is granted one week's time to file her

written statement. In case the written statement is not filed

within one week, the right of the appellant to file the same

shall stand closed once again.

17. The Family Court shall endeavour to decide the

case within six months from the date of service of this order

upon the Family Court. No undue adjournments shall be

sought by either of the parties, and none shall be granted by

the Court.

18. The appeal stands disposed of in the aforesaid

terms.

19. Pending application, if any, also stands disposed of.

(VIPIN SANGHI, C.J.)

(RAKESH THAPLIYAL, J.) Dated: 02nd August, 2023 NISHANT