SHIVA KIRTI SINGH, A. C. J.

1. The issue referred to the full Bench for adjudication at the very initial stage of filing of present appeals is whether these appeals under Sec.19 of the Family Courts Act, 1984 (hereinafter referred to as the Act), preferred against the judgment and order of a Family Court should be treated and recorded as First Appeal or as Miscellaneous appeal. This issue being an issue of law does not require going into the facts of the appeals.

2. However, some facts which may be helpful in deciding the issue in question, relate to Miscellaneous Appeal No.191 of 2009 and are noticed in brief. This appeal has been filed against an order dated 19-2-2009 passed in Misc. Case No.11 of 2000 by Principal Judge, Family Court, muzaffarpur whereby and whereunder the judgment and decree dated 7-10-1966 obtained by the appellants husband against the private respondent, the wife of the appellant has been set aside on accepting the plea of the respondent wife that the ex parte judgment and decree of divorce had been obtained without notice to her. The result of the order under appeal is to revive the original suit No.12 of 1964 which has to be decided afresh in accordance with law. This order does not amount to a decree but is appealable under Sec.19 of the Act.

3. The reference to the Full Bench has been necessitated on account of two conflicting Division Bench judgments of this court. In the case decided earlier, Raj Kumar sana V/s. Ritu Kala Saran, 2008 (2) PLJR, 211, section 19 of the Act providing for appeal from a judgment or order, not being an interlocutory order of a Family Court was quoted and on the basis of an observation-"it further appears that orders passed by family Court is in the form of a decree," it was concluded that a decree drawn in a suit can be tested by the High Court only in a first Appeal and not in a Miscellaneous appeal. On the basis of this judgment, appeals preferred under Sec.19 of the Act were labelled as First Appeals.

4. Another Division Bench in a later decision in the case of Binod Thakur V/s. State of Bihar and another, 2008 (4) PLJR 545 had the occasion to once again consider the same issue on account of defects/objection raised by the Office against not labelling the appeal as First Appeal. In this judgment the division Bench considered Sec.19 of the family Courts Act and pointedly noticed that section 19 does not provide that a judgment or order of the Family Court is appealable as a decree of the Court made in exercise of the original jurisdiction. The point was further highlighted by referring to Sec.28 of the Hindu Marriage Act 1955 which contains provision for appeals from decrees and orders in any proceeding under that Act with a clear stipulation that all such decree made by the Court in any proceeding under that act shall be appealable as decrees of the court made in exercise of its original civil jurisdiction. subject to exception provided in sub-section (b) of Sec.28 of the Hindu Marriage Act.

5. To similar effect, Sec.54 of the land Acquisition Act, 1894 was also noticed in that judgment to highlight that under the said provision the award passed by the Civil court in reference is deemed to be a decree and appeal is provided under Sec.54 of the Land Acquisition Act as if it has arisen from the original decree. In contrast, it was noticed that under Sec.19 ,of the Act, neither by any direct provision nor by any legal fiction, the judgment or order of the family Court is treated as a decree made in exercise of original civil jurisdiction. The office of the Court was therefore directed to treat an appeal under Sec.19 of the Act not as First Appeal but as Miscellaneous Appeal.

6. It, is. interesting to note that in the case of Dr. Vivekanand Sharma V/s. Smt. Manorma Rai @ Amrita (First Appeal No.104 of 2008) the appeal under Sec.19 of the act before this Court was originally registered as First Appeal. Such labelling was defended by learned counsel for the appellan