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2008 DIGILAW 178 (ORI)

GLTANJAII PANIGRAHI v. SITANSU SEKHAR DASH

2008-02-29

S.PANDA

body2008
ORDER S. Panda, J. - This is an appeal by the wife against the ex parte decree for dissolution of marriage passed by the learned Civil Judge (Senior Division), Angul, u/s 13 of the Hindu Marriage Act (hereinafter referred to as "the Act") disposing of MAT Suit No. 49 of 2005 filed by the husband. 2. From the averments made in the memorandum of appeal and the application filed u/s 14 of the Limitation Act, it appears that after disposal of the suit on 4.10.2005, the Appellant wrongly filed an appeal before the learned District Judge, Dhenkanal on 22.11.2005 u/s 28 of the Hindu Marriage Act, 1955 and the same was registered as Appeal No. 51 of 2005. On 12.12.2005 when the Appellant moved an advance petition, the learned District Judge, without considering the same, transferred the appeal to the learned Additional Distrit Judge, Angul with a direction to the Appellant to appear before the said Court on 17.12.2005. But on 14.12.2005 when it was discovered that the said appeal was to be filed before this Court, the Appellant filed the present appeal before this Court on 15.12.2005. However, pursuant to the aforesaid direction of the learned District Judge, the Appellant appeared before the learned A.D.J., Angul on 17.12.2005 and withdrew the appeal. 3. The present appeal was listed for the first time on 19.1.2006 for removal of the defect as pointed out by the Stamp Reporter that the Appellant had not valued the appeal. On 27.2.2008, the Appellant valued the appeal at Rs. 50,000/-. Due to the said valuation, the appeal was to be filed before the District Judge in view of Section 16(2)(a) of the Orissa Civil Courts Act, 1984 which is extracted hereunder for better appreciation. 16. Appeals (1) xxx xxx xxx (2) Save as aforesaid, an appeal from the decree or order of a Civil Judge (Senior Division) shall lie - (a) to a District Judge, where the value of the original suit in which or in any proceeding arising out of which the decree or order was made, did not exceed one lakh rupees; and (b) xxx xxx xxx 4. The learned Counsel for the Appellant submitted that in view of Section 19 of the Act, every petition under the Act shall be presented to the District Court within the local limits and hence, this appeal shall lie to this Court and not to the District Court. 5. The State Government u/s 3(b) of the Act notified on 30th of November, 1966 that every Court of principal Subordinate Judge in the State of Orissa shall have jurisdiction in respect of the matters dealt with in the said Act. Thus, the learned principal Subordinate Judge, now Civil Judge (Senior Division) entertained the application on the basis of the aforesaid notification and disposed of the case. This appeal has been carried in terms of Section 28 of the Act but the dispute is as to the forum of appeal - Whether it would be this Court or the Court of the District Judge? The said question is no more res Integra. 6. This Court, in the case of Nrusingh Charan Nayak Vs. Smt. Hemant Kumari Nayak has held that- (1) Court other than the principal Civil Court of original jurisdiction which by notification made u/s 3(b) of the Hindu Marriage Act are conferred with jurisdiction to entertain proceedings under the Act are not "District Court proper" and irrespective of valuation an appeal would not lie against decrees of such Courts to the High Court; (2) The appellate forum has to be determined in accordance with the provisions of the Bengal, Agra and Assam Civil Courts Act. Where the dispute is valued upto Rs. 5,000/-, the appeal would lie to the District Judge when the impugned decree is of a Court other than the principal Civil Court of original jurisdiction. In a case where the valuation is above Rs. 5,000/- and the decree is by a Court other than the principal Civil Court of original jurisdiction, the appeal would lie to the High Court; and (3) Where no valuation has been put in the proceeding and there is no material to indicate that the appeal is valued at more than Rs. 5,000/-, the appeal would also lie to the District Court and not to the High Court because under the provisions of the Bengal, Agra and Assam Civil Courts Act, only on a stated valuation, first appeal lie to the High Court. 7. 5,000/-, the appeal would also lie to the District Court and not to the High Court because under the provisions of the Bengal, Agra and Assam Civil Courts Act, only on a stated valuation, first appeal lie to the High Court. 7. In the State of Orissa, the establishment and regulation of Civil Courts were being governed by the Bengal, Agra and Assam Civil Courts Act, 1887 (12 of 1887). The said Act stood repealed in its application to the State of Orissa and the Orissa Civil Courts Act, 1984 came into force with effect from 9.8.1984. 8. Accordingly, the memorandum of appeal along with the Court-fees and the certified copy of the impugned judgment and decree is permitted to be withdrawn by the Appellant to-be presented before the appropriate Court. Final Result : Allowed