Appeals from decrees passed under Sections 9, 10, 11, and 13 of the Hindu Marriage Act should be registered as civil miscellaneous appeals and not as first appeals.

CHANDRA REDDY, C. J.

( 1 ) THE question raised in this reference is whether appeals from decrees passed under Sections 9, 10, 11 and 13 of the Hindu Marriage Act (XXV of 1955) should be registered as civil miscellaneous appeals or first appeals.

( 2 ) THE practice in this court was to register them as civil miscellaneous appeals till a decision was rendered by Umamaheswaram J. in S. R. No. 6720 of 1959". There, the learned Judge held that having regard to the language of these sections which describe the decision of the court as a decree, regular appeals lie from these adjudications and that it is not correct to register them as civil miscellaneous appeals. The lerned Judge drew a distinction between these sections and Sections 24 to 26 which relate to the granting of maintenance, expenses of proceeding and custody of children, the decisions under which are regarded as orders. In the opinion of the learned Judge, appeals from orders arising under the latter group of sections alone could be registered as civil miscellaneous appeals while those under Sections 9, 10, 11 and 13 should be registered as regular appeals. He thought that this consequence flows from a reading of Section 28 of the Hindu Marriage Act read with Section 96 of the Civil Procedure Code.

( 3 ) SECTION 9 deals with restitution of conjugal rights, Section 10 with judicial separation, Section 11 with void marriages and Section 13 with divorce. In all these matters the concerned civil court is empowered to grant decrees giving the reliefs asked for. But the question for consideration is whether the description of the adjudication as a decree is decisive of the matter, namely, whether appeals arising therefrom should be regarded as first appeals. The answer to this turns upon Section 90 C. P. C. which confers a right of appeal upon litigants against the decrees passed in the exercise of original jurisdiction. That section, in so far as it is material for our enquiry, reads:"save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court".

( 4 ) IT is immediately clear that an appeal is competent under that section only from a decree passed by a Court in the exercise of its original jurisdiction. In other words, it should be a decree within the connotation of Section 2 (2) of the Code. Decree as defined in that section is:"decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. "*** ***thus, the pro-requisite of a decree is that the proceeding which results in an adjudication should start in a suit.

( 5 ) SUIT is not defined in the Civil Procedure Code, but some help could be derived from Section 29 of the Code which says : "every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. This section gives a clue to the problem as to what a suit is, namely, that it is a proceeding which is initiated by the filing of a plaint.

( 6 ) A reference to some of the statutes would establish that a proceeding though not started by a plaint could be regarded as a suit, provided that a specific provision is made in that behalf, as in the case of Section 20 (2) of the Arbitration Act, 1940 (X of 1940) which recites:"the application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming t

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