In addition to the above, a Full Bench decision of
this Court in the case of Swarna Prava Tripathy and another Vs.
Dibyasingha Tripathy and another, reported in 1998 (II) OLR 1
had the occasion to examine what an ‘interlocutory order’ is and
held as under:-
“6. …. The expression 'interlocutory order as used in
restricted and not in any broad or artistic sense,
denotes orders of a purely interim or temporary nature
which do not decide or touch the important rights or
liabilities of the parties, in Webster's Third
International Dictionary, the expression 'interlocutory'
has been defined as, 'not final or definite, made or
done during the progress of an action; intermediate,
provisional'. The emphasis is, therefore, at the stage
when the order is passed. Interlocutory stage is
decidedly the state between the cognisance taken by
the Court and the judgment pronounced. The
interlocutory order is supplemental proceeding which
is a means to an end and not an end itself. The word
'interlocutory' means according to the import of the
dictionary 'intermediate' and the interlocutory order is
one passed during the progress of the proceeding that
is to say, interlocutory order must be an order passed
after the initiation of the proceedings and before the 10
final order disposing of the matter. In New Webster's
Dictionary, College Edition, the meaning given is 'of
the nature of, pertaining to, or occurring in,
conversation or dialogue; spoken intermediately, as
interlocutory conversation interjected into the main
speech. Law, pronounced during the course of an
action, as a decision or order, not finally decisive of a
case, pertaining to a provisional decision.'
Interlocutory orders are steps taken towards the final
adjudication for assisting the parties in the
prosecution of their case in the pending
proceedings. See Central Bank of India v. Gokul
Chand, AIR 1967 SC 799. Interlocutory inter alia
means not that which decides the case, but that which
only settles some intervening matter relating to the
cause. As interlocutory order is one which is made
pending the cause and before a final hearing on the
merils. An interlocutory order is made to secure some
end and purpose necessary and essential to the
progress of the suit, and generally collateral to the
issues formed by the pleadings and not connected withthe final judgment.”
HIGH COURT OF ORISSA: CUTTACK.
MATA NO.72 OF 2015
Gyanasis Jena V Smt.Rekha Swain
Date of Order : 08.09.2016
P R E S E N T:
SHRI JUSTICE B.K.NAYAK
A N D
SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 Orisssa 163
K.R. Mohapatra, J. This Matrimonial Appeal has been filed assailing the
order dated 12.3.2015 passed by learned Judge Family Court,
Cuttack in Misc. Case No.118 of 2012 allowing an application for
setting aside the ex-parte judgment dated 08.12.2008 passed in C.P.
No.78 of 2007. When the matter was taken up for admission, this
Court by order dated 20.04.2015, raised a doubt with regard to
maintainability of this Appeal under Section 19 of the Family Courts 2
Act, 1984 (for short, ‘the Act,1984’). Again on 04.05.2015, the
matter was taken up for consideration of the issue of maintainability
of this Appeal, when this Court felt it proper to issue notice to the
respondents indicating therein that the matter would come up on
15th July, 2015 for final adjudication on the question of
maintainability. The matter was thereafter adjourned to different
dates and the parties have filed their written arguments in support
of their case in the meanwhile. The matter was ultimately heard on
29.08.2016 on the question of maintainability of the appeal. Since
the maintainability of the appeal is the issue involved for
adjudication at present, this Court is not required to delve in detail
into the facts and merit of the appeal except some relevant facts
necessary for proper adjudication of the issue which is stated
hereunder in brevity.
2. The marriage between the parties to the Appeal was
solemnized on 07.12.2001 according to Hindu rites and custom. As
some dissensions arose between the parties, the Appellant filed C.P.
No.78 of 2007 in the Court of the Judge Family Court, Cuttack
under Section 13 of the Hindu Marriage Act, 1955 (for short, the
‘Act,1955’). Due to non-appearance of the respondent (wife), she was
set ex parte on 29.08.2008 and ex parte decree of divorce was
passed on 08.12.2008. The respondent filed an application under
Order 9 Rule 13, CPC for setting aside the ex parte decree on
03.10.2012, which was registered as Misc. Case No.118 of 2012. By 3
order dated 12.03.2015, the Judge Family Court, Cuttack set aside
the ex parte decree dated 08.12.2008 and restored C.P. No.78 of
2007 to file, which is under challenge in this Appeal.
3. Heard Mr.N.K.Sahu, learned counsel for the Appellant
and Mr.Pravat Kumar Mohanty, learned counsel for the respondent.
Perused the written notes of argument filed by the parties along
with citations enclosed therewith. The question of maintainability of
the Appeal has been raised by this Court apparently relying upon a
decision of the Hon’ble Supreme Court in the case of Bhulan Rout
and another Vs. Lalbahadur Yadav, reported in (2004) 13 SCC
679. In the said case, Hon’ble Supreme Court has categorically held
that no appeal is expressly provided under Order 43 of CPC against
order allowing an application under Order 9 Rule 13, CPC. Hence,
no appeal lies against order allowing an application under Order 9
Rule 13, CPC.
4. In order to advert to the issue of maintainability, it
requires close reading of the provision under Section 19 of the Act,
1984 which is the substantive provision for appeal to the High Court
against a judgment and order of the Family Court. It reads as
follows:-
“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 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. 4
(2) No appeal shall lie from a decree or order
passed by the Family Court with the consent of the
parties 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.
xx xx xx”
On a plain reading of the aforesaid provision, it is clear
that save and except from an interlocutory order or an order or a
decree passed on consent of the parties and order passed under
Chapter-IX of the Code of Criminal Procedure, 1973, an appeal shall
lie from every judgment or order of a Family Court to the High Court
both on facts and law. In the case at hand, the order assailed is
neither passed on consent nor it is an order passed under ChapterIX
of the Cr.P.C. Thus, this Court has to examine as to whether the
impugned order is an interlocutory one. If the answer is in
affirmative, no appeal shall lie from such order and vice-versa.
5. Mr.N.K.Sahu, learned counsel for the appellant
vehemently argued that allowing an application under Order 9 Rule
13, CPC is not an interlocutory order. Since the right of the parties
involved in the said proceeding is finally adjudicated, it can be
termed as ‘interlocutory judgment’ which according to him is
appealable under Section 19 of the Act, 1984. In support of his
case, he relied upon a decision of the Hon’ble Supreme Court in the
case of Shah Babulal Khimji Vs. Jayaben D.Kania and another, 5
reported in AIR 1981 SC 1786, the relevant portion at paragraph-
113 of which is quoted herein below.
“xx xx xx
(3) Intermediary or Interlocutory judgment-Most of the
interlocutory orders which contain the quality of finality
are clearly specified in clauses (a) to (w) of order 43
Rule 1 and have already been held by us to be
judgments within the meaning of the Letters Patent
and, therefore, appealable. There may also be
interlocutory orders which are not covered by o. 43 R.1
but which also possess the characteristics and
trappings of finality in that, the orders may adversely
affect a valuable right of the party or decide an
important aspect of the trial in an ancillary proceeding.
Before such an order can be a judgment the adverse
effect on the party concerned must be direct and
immediate rather than indirect or remote. For instance,
where the Trial Judge in a suit under Order 37 of the
Code of Civil Procedure refuses the defendant leave to
defend the suit, the order directly affects the defendant
because he loses a valuable right to defend the suit and
his remedy is confined only to contest the plaintiff's
case on his own evidence without being given a chance
to rebut that evidence. As such an order vitally affects a
valuable right of the defendant it will undoubtedly be
treated as a judgment within the meaning of the Letters
Patent so as to be appealable to a larger Bench. Take
the converse case in a similar suit where the trial Judge
allows the defendant to defend the suit in which case
although the plaintiff is adversely affected but the
damage or prejudice caused to him is not direct or
immediate but of a minimal nature and rather too
remote because the plaintiff still possesses his full right
to show that the defence is false and succeed in the
suit. Thus, such an Order passed by the Trial Judge
would not amount to a judgment within the meaning of
cl. 15 of the Letters Patent but will be purely an
interlocutory order.
Similarly, suppose the Trial Judge passes an
Order setting aside an exparte decree against the
defendant, which is not appealable under any of the
clauses of O. 43 R.1 though an order rejecting an
application to set aside the decree passed exparte falls6
within O. 43 R.l cl. (d) and is appealable, the serious
question that arises is whether or not the order first
mentioned is a judgment within the meaning of Letters
Patent. The fact, however, remains that the order
setting aside the ex-parte decree puts the defendant to
a great advantage and works serious injustice to the
plaintiff because as a consequence of the order, the
plaintiff has now to contest the suit and is deprived of
the fruits of the decree passed in his favour. In these
circumstances, therefore, the order passed by the Trial
Judge setting aside the ex parte decree vitally affects
the valuable rights of the plaintiff and hence amounts
to an interlocutory judgment and is therefore,
appealable to a larger Bench.”
He further referring to Section 19 of the Act, 1984 contended that
the provision under Section 19(1) of the said Act starts with a nonobstante
clause and thus, the provision under Section 10 of the
Family Courts Act is not applicable to the appeals made under
Section 19 of the Act. Thus, he contended that the Appeal is very
much maintainable.
6. Mr. Prabhat Kumar Mohanty, learned counsel for the
respondent, on the other hand, in addition to the case of Bhulan
Rout (supra) also relied upon the decision in the case of Poonam
Chand Jain and another Vs. Fazru, reported in 2005 (1) OLR
(SC)1 and contended that an order which does not terminate the
proceedings or finally decides the right of the parties is only an
interlocutory order. He further contended that Section 10 of the Act
provides that procedure laid down in the Code of Civil Procedure,
1908 is applicable to a proceeding under the Act, 1984 and Family
Courts shall be deemed to be Civil Court and for that purpose, it 7
shall have all powers of a Civil Court. Thus provision under Order
43 Rule 1(d), CPC is squarely applicable to the proceedings in a
Family Court. Since Order 43 does not provide for appeal against
allowing an application under Order 9 Rule 13, CPC, no appeal in
the eye of law shall lie under Section 19(1) of the Act. Hence, he
prayed for dismissal of the appeal as not maintainable.
7. Section 10 of the Family Courts Act reads as follows:-
“10. Procedure generally.-(1) Subject to the other
provisions of this Act and the rules, the provisions of
the Code of Civil Procedure, 1908 (5 of 1908) and of any
other law for the time being in force shall apply to the
suits and proceedings [other than the proceedings
under Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974)] before a Family Court and for the
purposes of the said provisions of the Code, a Family
Court shall be deemed to be a civil court and shall have
all the powers of such court.
(2) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Criminal Procedure,
1973 (2 of 1974) or the rules made thereunder, shall
apply to the proceedings under Chapter IX of that Code
before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall
prevent a Family Court from laying down its own
procedure with a view to arrive at a settlement in
respect of the subject-matter of the suit or proceedings
or at the truth of the facts alleged by the one party and
denied by the other.”
Section 10(1) starts with the words ‘Subject to the other
provisions of this Act and the rules’; including Section 19 thereof,
which starts with a non-obstante clause, i.e., ‘Save as otherwise
provided in sub-section (2) and notwithstanding contained in the
Code of Civil Procedure, 1908 (5 of 1908)’, which confers a 8
substantive right of appeal. Further, Section-20 of the Act, 1984
provides its overriding effect on any other law. It reads as follows:-
“20. Act to have overriding effect – The provisions of
this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for
the time being in force or in any instrument having
effect by virtue of any law other than this Act.”
Section-20 makes it further clear that the provisions of this Act will
have an overriding effect, which is inconsistent with the provisions
of any other law for the time being in force. In the decision in the
case of Aswini Kumar Ghose and another Vs.Arabinda Bose and
another, reported in AIR 1952 SC 369, the Hon’ble Supreme Court
held as follows:-
“24. ….It should first be ascertained what the enacting
part of the section provides on a fair construction of
the words used according to their natural and ordinary
meaning, and the non obstante clause is to be
understood as operating to set aside as no longer valid
anything contained in relevant existing laws which is
inconsistent with the new enactment…..”
Thus, Section 19(1) of the Act, 1984 overrides the provisions of
‘Appeal’ either under Section 96 or under Section 104 read with
relevant Rules, as provided under the Code of Civil Procedure, 1908
and therefore, Section 10 has no applicability in preferring an
appeal under Section 19(1) of the Act, 1984.
As discussed earlier, Section 19 provides three exceptions,
where an appeal does not lie from the judgment and order of a
Family Court, such as.—9
(a) where the decree or order passed by the Judge
Family Court with the consent of the parties;
(b) from an order passed under Chapter-9 of
Cr.P.C.; and
(c) an interlocutory order passed by the Judge
Family Court.
8. The first two exceptions have no relevance for the case
at hand. As held in Shah Babulal Khimji (supra) order allowing an
application to set aside an ex parte decree is an ‘interlocutory
judgment’, which finally determines the right of the parties in the
said proceeding.
In addition to the above, a Full Bench decision of
this Court in the case of Swarna Prava Tripathy and another Vs.
Dibyasingha Tripathy and another, reported in 1998 (II) OLR 1
had the occasion to examine what an ‘interlocutory order’ is and
held as under:-
“6. …. The expression 'interlocutory order as used in
restricted and not in any broad or artistic sense,
denotes orders of a purely interim or temporary nature
which do not decide or touch the important rights or
liabilities of the parties, in Webster's Third
International Dictionary, the expression 'interlocutory'
has been defined as, 'not final or definite, made or
done during the progress of an action; intermediate,
provisional'. The emphasis is, therefore, at the stage
when the order is passed. Interlocutory stage is
decidedly the state between the cognisance taken by
the Court and the judgment pronounced. The
interlocutory order is supplemental proceeding which
is a means to an end and not an end itself. The word
'interlocutory' means according to the import of the
dictionary 'intermediate' and the interlocutory order is
one passed during the progress of the proceeding that
is to say, interlocutory order must be an order passed
after the initiation of the proceedings and before the 10
final order disposing of the matter. In New Webster's
Dictionary, College Edition, the meaning given is 'of
the nature of, pertaining to, or occurring in,
conversation or dialogue; spoken intermediately, as
interlocutory conversation interjected into the main
speech. Law, pronounced during the course of an
action, as a decision or order, not finally decisive of a
case, pertaining to a provisional decision.'
Interlocutory orders are steps taken towards the final
adjudication for assisting the parties in the
prosecution of their case in the pending
proceedings. See Central Bank of India v. Gokul
Chand, AIR 1967 SC 799. Interlocutory inter alia
means not that which decides the case, but that which
only settles some intervening matter relating to the
cause. As interlocutory order is one which is made
pending the cause and before a final hearing on the
merils. An interlocutory order is made to secure some
end and purpose necessary and essential to the
progress of the suit, and generally collateral to the
issues formed by the pleadings and not connected with
the final judgment.”
Thus, at no stretch of imagination, the impugned order
can be said to be an interlocutory order. The ratio decided in the
case of Bhulan Rout (supra) and Poonam Chand Jain (supra) have no
application to the case at hand.
9. In that view of the matter, the impugned order being not
an interlocutory one, is held to be appealable under Section 19(1) of
the Family Courts Act and the appeal is held to be maintainable.
…………………………..
K.R. Mohapatra, J.
B.K.Nayak, J. I agree.
…………………………..
B. K. Nayak, J.
… Orissa High Court, Cuttack
Dated the 8th Sept., 2016/ss
this Court in the case of Swarna Prava Tripathy and another Vs.
Dibyasingha Tripathy and another, reported in 1998 (II) OLR 1
had the occasion to examine what an ‘interlocutory order’ is and
held as under:-
“6. …. The expression 'interlocutory order as used in
restricted and not in any broad or artistic sense,
denotes orders of a purely interim or temporary nature
which do not decide or touch the important rights or
liabilities of the parties, in Webster's Third
International Dictionary, the expression 'interlocutory'
has been defined as, 'not final or definite, made or
done during the progress of an action; intermediate,
provisional'. The emphasis is, therefore, at the stage
when the order is passed. Interlocutory stage is
decidedly the state between the cognisance taken by
the Court and the judgment pronounced. The
interlocutory order is supplemental proceeding which
is a means to an end and not an end itself. The word
'interlocutory' means according to the import of the
dictionary 'intermediate' and the interlocutory order is
one passed during the progress of the proceeding that
is to say, interlocutory order must be an order passed
after the initiation of the proceedings and before the 10
final order disposing of the matter. In New Webster's
Dictionary, College Edition, the meaning given is 'of
the nature of, pertaining to, or occurring in,
conversation or dialogue; spoken intermediately, as
interlocutory conversation interjected into the main
speech. Law, pronounced during the course of an
action, as a decision or order, not finally decisive of a
case, pertaining to a provisional decision.'
Interlocutory orders are steps taken towards the final
adjudication for assisting the parties in the
prosecution of their case in the pending
proceedings. See Central Bank of India v. Gokul
Chand, AIR 1967 SC 799. Interlocutory inter alia
means not that which decides the case, but that which
only settles some intervening matter relating to the
cause. As interlocutory order is one which is made
pending the cause and before a final hearing on the
merils. An interlocutory order is made to secure some
end and purpose necessary and essential to the
progress of the suit, and generally collateral to the
issues formed by the pleadings and not connected withthe final judgment.”
HIGH COURT OF ORISSA: CUTTACK.
MATA NO.72 OF 2015
Gyanasis Jena V Smt.Rekha Swain
Date of Order : 08.09.2016
P R E S E N T:
SHRI JUSTICE B.K.NAYAK
A N D
SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 Orisssa 163
K.R. Mohapatra, J. This Matrimonial Appeal has been filed assailing the
order dated 12.3.2015 passed by learned Judge Family Court,
Cuttack in Misc. Case No.118 of 2012 allowing an application for
setting aside the ex-parte judgment dated 08.12.2008 passed in C.P.
No.78 of 2007. When the matter was taken up for admission, this
Court by order dated 20.04.2015, raised a doubt with regard to
maintainability of this Appeal under Section 19 of the Family Courts 2
Act, 1984 (for short, ‘the Act,1984’). Again on 04.05.2015, the
matter was taken up for consideration of the issue of maintainability
of this Appeal, when this Court felt it proper to issue notice to the
respondents indicating therein that the matter would come up on
15th July, 2015 for final adjudication on the question of
maintainability. The matter was thereafter adjourned to different
dates and the parties have filed their written arguments in support
of their case in the meanwhile. The matter was ultimately heard on
29.08.2016 on the question of maintainability of the appeal. Since
the maintainability of the appeal is the issue involved for
adjudication at present, this Court is not required to delve in detail
into the facts and merit of the appeal except some relevant facts
necessary for proper adjudication of the issue which is stated
hereunder in brevity.
2. The marriage between the parties to the Appeal was
solemnized on 07.12.2001 according to Hindu rites and custom. As
some dissensions arose between the parties, the Appellant filed C.P.
No.78 of 2007 in the Court of the Judge Family Court, Cuttack
under Section 13 of the Hindu Marriage Act, 1955 (for short, the
‘Act,1955’). Due to non-appearance of the respondent (wife), she was
set ex parte on 29.08.2008 and ex parte decree of divorce was
passed on 08.12.2008. The respondent filed an application under
Order 9 Rule 13, CPC for setting aside the ex parte decree on
03.10.2012, which was registered as Misc. Case No.118 of 2012. By 3
order dated 12.03.2015, the Judge Family Court, Cuttack set aside
the ex parte decree dated 08.12.2008 and restored C.P. No.78 of
2007 to file, which is under challenge in this Appeal.
3. Heard Mr.N.K.Sahu, learned counsel for the Appellant
and Mr.Pravat Kumar Mohanty, learned counsel for the respondent.
Perused the written notes of argument filed by the parties along
with citations enclosed therewith. The question of maintainability of
the Appeal has been raised by this Court apparently relying upon a
decision of the Hon’ble Supreme Court in the case of Bhulan Rout
and another Vs. Lalbahadur Yadav, reported in (2004) 13 SCC
679. In the said case, Hon’ble Supreme Court has categorically held
that no appeal is expressly provided under Order 43 of CPC against
order allowing an application under Order 9 Rule 13, CPC. Hence,
no appeal lies against order allowing an application under Order 9
Rule 13, CPC.
4. In order to advert to the issue of maintainability, it
requires close reading of the provision under Section 19 of the Act,
1984 which is the substantive provision for appeal to the High Court
against a judgment and order of the Family Court. It reads as
follows:-
“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 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. 4
(2) No appeal shall lie from a decree or order
passed by the Family Court with the consent of the
parties 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.
xx xx xx”
On a plain reading of the aforesaid provision, it is clear
that save and except from an interlocutory order or an order or a
decree passed on consent of the parties and order passed under
Chapter-IX of the Code of Criminal Procedure, 1973, an appeal shall
lie from every judgment or order of a Family Court to the High Court
both on facts and law. In the case at hand, the order assailed is
neither passed on consent nor it is an order passed under ChapterIX
of the Cr.P.C. Thus, this Court has to examine as to whether the
impugned order is an interlocutory one. If the answer is in
affirmative, no appeal shall lie from such order and vice-versa.
5. Mr.N.K.Sahu, learned counsel for the appellant
vehemently argued that allowing an application under Order 9 Rule
13, CPC is not an interlocutory order. Since the right of the parties
involved in the said proceeding is finally adjudicated, it can be
termed as ‘interlocutory judgment’ which according to him is
appealable under Section 19 of the Act, 1984. In support of his
case, he relied upon a decision of the Hon’ble Supreme Court in the
case of Shah Babulal Khimji Vs. Jayaben D.Kania and another, 5
reported in AIR 1981 SC 1786, the relevant portion at paragraph-
113 of which is quoted herein below.
“xx xx xx
(3) Intermediary or Interlocutory judgment-Most of the
interlocutory orders which contain the quality of finality
are clearly specified in clauses (a) to (w) of order 43
Rule 1 and have already been held by us to be
judgments within the meaning of the Letters Patent
and, therefore, appealable. There may also be
interlocutory orders which are not covered by o. 43 R.1
but which also possess the characteristics and
trappings of finality in that, the orders may adversely
affect a valuable right of the party or decide an
important aspect of the trial in an ancillary proceeding.
Before such an order can be a judgment the adverse
effect on the party concerned must be direct and
immediate rather than indirect or remote. For instance,
where the Trial Judge in a suit under Order 37 of the
Code of Civil Procedure refuses the defendant leave to
defend the suit, the order directly affects the defendant
because he loses a valuable right to defend the suit and
his remedy is confined only to contest the plaintiff's
case on his own evidence without being given a chance
to rebut that evidence. As such an order vitally affects a
valuable right of the defendant it will undoubtedly be
treated as a judgment within the meaning of the Letters
Patent so as to be appealable to a larger Bench. Take
the converse case in a similar suit where the trial Judge
allows the defendant to defend the suit in which case
although the plaintiff is adversely affected but the
damage or prejudice caused to him is not direct or
immediate but of a minimal nature and rather too
remote because the plaintiff still possesses his full right
to show that the defence is false and succeed in the
suit. Thus, such an Order passed by the Trial Judge
would not amount to a judgment within the meaning of
cl. 15 of the Letters Patent but will be purely an
interlocutory order.
Similarly, suppose the Trial Judge passes an
Order setting aside an exparte decree against the
defendant, which is not appealable under any of the
clauses of O. 43 R.1 though an order rejecting an
application to set aside the decree passed exparte falls6
within O. 43 R.l cl. (d) and is appealable, the serious
question that arises is whether or not the order first
mentioned is a judgment within the meaning of Letters
Patent. The fact, however, remains that the order
setting aside the ex-parte decree puts the defendant to
a great advantage and works serious injustice to the
plaintiff because as a consequence of the order, the
plaintiff has now to contest the suit and is deprived of
the fruits of the decree passed in his favour. In these
circumstances, therefore, the order passed by the Trial
Judge setting aside the ex parte decree vitally affects
the valuable rights of the plaintiff and hence amounts
to an interlocutory judgment and is therefore,
appealable to a larger Bench.”
He further referring to Section 19 of the Act, 1984 contended that
the provision under Section 19(1) of the said Act starts with a nonobstante
clause and thus, the provision under Section 10 of the
Family Courts Act is not applicable to the appeals made under
Section 19 of the Act. Thus, he contended that the Appeal is very
much maintainable.
6. Mr. Prabhat Kumar Mohanty, learned counsel for the
respondent, on the other hand, in addition to the case of Bhulan
Rout (supra) also relied upon the decision in the case of Poonam
Chand Jain and another Vs. Fazru, reported in 2005 (1) OLR
(SC)1 and contended that an order which does not terminate the
proceedings or finally decides the right of the parties is only an
interlocutory order. He further contended that Section 10 of the Act
provides that procedure laid down in the Code of Civil Procedure,
1908 is applicable to a proceeding under the Act, 1984 and Family
Courts shall be deemed to be Civil Court and for that purpose, it 7
shall have all powers of a Civil Court. Thus provision under Order
43 Rule 1(d), CPC is squarely applicable to the proceedings in a
Family Court. Since Order 43 does not provide for appeal against
allowing an application under Order 9 Rule 13, CPC, no appeal in
the eye of law shall lie under Section 19(1) of the Act. Hence, he
prayed for dismissal of the appeal as not maintainable.
7. Section 10 of the Family Courts Act reads as follows:-
“10. Procedure generally.-(1) Subject to the other
provisions of this Act and the rules, the provisions of
the Code of Civil Procedure, 1908 (5 of 1908) and of any
other law for the time being in force shall apply to the
suits and proceedings [other than the proceedings
under Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974)] before a Family Court and for the
purposes of the said provisions of the Code, a Family
Court shall be deemed to be a civil court and shall have
all the powers of such court.
(2) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Criminal Procedure,
1973 (2 of 1974) or the rules made thereunder, shall
apply to the proceedings under Chapter IX of that Code
before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall
prevent a Family Court from laying down its own
procedure with a view to arrive at a settlement in
respect of the subject-matter of the suit or proceedings
or at the truth of the facts alleged by the one party and
denied by the other.”
Section 10(1) starts with the words ‘Subject to the other
provisions of this Act and the rules’; including Section 19 thereof,
which starts with a non-obstante clause, i.e., ‘Save as otherwise
provided in sub-section (2) and notwithstanding contained in the
Code of Civil Procedure, 1908 (5 of 1908)’, which confers a 8
substantive right of appeal. Further, Section-20 of the Act, 1984
provides its overriding effect on any other law. It reads as follows:-
“20. Act to have overriding effect – The provisions of
this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for
the time being in force or in any instrument having
effect by virtue of any law other than this Act.”
Section-20 makes it further clear that the provisions of this Act will
have an overriding effect, which is inconsistent with the provisions
of any other law for the time being in force. In the decision in the
case of Aswini Kumar Ghose and another Vs.Arabinda Bose and
another, reported in AIR 1952 SC 369, the Hon’ble Supreme Court
held as follows:-
“24. ….It should first be ascertained what the enacting
part of the section provides on a fair construction of
the words used according to their natural and ordinary
meaning, and the non obstante clause is to be
understood as operating to set aside as no longer valid
anything contained in relevant existing laws which is
inconsistent with the new enactment…..”
Thus, Section 19(1) of the Act, 1984 overrides the provisions of
‘Appeal’ either under Section 96 or under Section 104 read with
relevant Rules, as provided under the Code of Civil Procedure, 1908
and therefore, Section 10 has no applicability in preferring an
appeal under Section 19(1) of the Act, 1984.
As discussed earlier, Section 19 provides three exceptions,
where an appeal does not lie from the judgment and order of a
Family Court, such as.—9
(a) where the decree or order passed by the Judge
Family Court with the consent of the parties;
(b) from an order passed under Chapter-9 of
Cr.P.C.; and
(c) an interlocutory order passed by the Judge
Family Court.
8. The first two exceptions have no relevance for the case
at hand. As held in Shah Babulal Khimji (supra) order allowing an
application to set aside an ex parte decree is an ‘interlocutory
judgment’, which finally determines the right of the parties in the
said proceeding.
In addition to the above, a Full Bench decision of
this Court in the case of Swarna Prava Tripathy and another Vs.
Dibyasingha Tripathy and another, reported in 1998 (II) OLR 1
had the occasion to examine what an ‘interlocutory order’ is and
held as under:-
“6. …. The expression 'interlocutory order as used in
restricted and not in any broad or artistic sense,
denotes orders of a purely interim or temporary nature
which do not decide or touch the important rights or
liabilities of the parties, in Webster's Third
International Dictionary, the expression 'interlocutory'
has been defined as, 'not final or definite, made or
done during the progress of an action; intermediate,
provisional'. The emphasis is, therefore, at the stage
when the order is passed. Interlocutory stage is
decidedly the state between the cognisance taken by
the Court and the judgment pronounced. The
interlocutory order is supplemental proceeding which
is a means to an end and not an end itself. The word
'interlocutory' means according to the import of the
dictionary 'intermediate' and the interlocutory order is
one passed during the progress of the proceeding that
is to say, interlocutory order must be an order passed
after the initiation of the proceedings and before the 10
final order disposing of the matter. In New Webster's
Dictionary, College Edition, the meaning given is 'of
the nature of, pertaining to, or occurring in,
conversation or dialogue; spoken intermediately, as
interlocutory conversation interjected into the main
speech. Law, pronounced during the course of an
action, as a decision or order, not finally decisive of a
case, pertaining to a provisional decision.'
Interlocutory orders are steps taken towards the final
adjudication for assisting the parties in the
prosecution of their case in the pending
proceedings. See Central Bank of India v. Gokul
Chand, AIR 1967 SC 799. Interlocutory inter alia
means not that which decides the case, but that which
only settles some intervening matter relating to the
cause. As interlocutory order is one which is made
pending the cause and before a final hearing on the
merils. An interlocutory order is made to secure some
end and purpose necessary and essential to the
progress of the suit, and generally collateral to the
issues formed by the pleadings and not connected with
the final judgment.”
Thus, at no stretch of imagination, the impugned order
can be said to be an interlocutory order. The ratio decided in the
case of Bhulan Rout (supra) and Poonam Chand Jain (supra) have no
application to the case at hand.
9. In that view of the matter, the impugned order being not
an interlocutory one, is held to be appealable under Section 19(1) of
the Family Courts Act and the appeal is held to be maintainable.
…………………………..
K.R. Mohapatra, J.
B.K.Nayak, J. I agree.
…………………………..
B. K. Nayak, J.
… Orissa High Court, Cuttack
Dated the 8th Sept., 2016/ss
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