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2010 DIGILAW 811 (KAR)

K. N. Vishwamithra v. Vasudha Vishwamithra

2010-07-15

D.V.SHYLENDRA KUMAR, K.N.KESHAVANARAYANA

body2010
Judgment : 1. The appeal filed under Section 28 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) is by the husband against the order dated 6-2-2010 passed by the Civil Judge (Senior Division), Sagar, on I.A. No. 1 in M.C. No. 3 of 2009 allowing the application filed by the respondent/wife under Section 24 of the Act for interim maintenance during the pendency of the petition filed by him for dissolution of marriage. 2. Registry raised several objections including the objection regarding maintainability of the appeal. As the office objections were not complied with within the time allowed under the Rules, the appeal had been listed before this Court for orders regarding noncompliance of office objections on 9-7-2010. On that day, none appeared on behalf of the appellant. However, in the interest of justice, this Court granted three days time for the appellant to comply with the office objections and to make the appeal presentable. The order dated 9-7-2010 reads as under: “None appears for the appellant. Office objections have not been complied with though time had been granted on an earlier occasion. Smt. P. Anu Chengappa, Advocate submits that she has filed vakalath for the respondent, though not notified by this Court, even as early as 19-3-2010. She submits that present appeal is being quoted only to harass the respondent/wife from realising fruits of the order under appeal which is an order providing her monthly interim maintenance of Rs. 4,000/- from 6-2-2010. She submits that wife is not being Provided with any maintenance and in main proceedings before the Court below which is a petition filed by the appellate/husband on the ground of cruelty and desertion on the part of respondent/wife, is being adjourned time and again, etc. However, in the interest of justice, we grant three days time for the appellant to ensure the appeal is made presentable through his Counsel who has filed power for the appellant. List this matter for further orders on 15-7-2010”. 3. Today also none appeared on behalf of the appellant. Though the matter was passed over in the forenoon session, even in the afternoon session, none appeared on behalf of the appellant. 4. We have perused the objections and we find that the objections raised by the office are tenable. List this matter for further orders on 15-7-2010”. 3. Today also none appeared on behalf of the appellant. Though the matter was passed over in the forenoon session, even in the afternoon session, none appeared on behalf of the appellant. 4. We have perused the objections and we find that the objections raised by the office are tenable. The order under appeal is an interlocutory order passed on the application filed under Section 24 of the Act for interim maintenance during the pendency of the petition. Section 28 of the Act reads as under: “28. Appeals from decreed and orders.- (1) All decrees made by the Court in any proceedings 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 the exercise of its original civil jurisdiction. (2) Orders made by the Court in any proceedings 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. (4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order”. 5. Thus, Section 28(1) of the Act though provides for an appeal against all decrees made under the Act, sub-section (2) of the Act provides for an appeal against the orders made under Section 25 or 26 of the Act, not being an interim order. In the case on hand, the order under appeal is an order passed on the application filed under Section 24 of the Act. Reading of Section 28 of the Act makes it clear that no right of appeal is conferred under said section to a party aggrieved by an order passed under Section 24 of the Act. Therefore, the present appeal filed under Section 28 of the Act against the order allowing the application filed under Section 24 of the Act is not maintainable. Office objections are sustained. Therefore, the present appeal filed under Section 28 of the Act against the order allowing the application filed under Section 24 of the Act is not maintainable. Office objections are sustained. The appeal is dismissed as not maintainable.