Order 41 Rule 11 CPC applies to an appeal under Section 28(2) of the Hindu Marriage Act.

( 1 ) THE learned Counsel for the appellant had made an application for stay of the judgment in an appeal arising out of an order passed under S. 25 of the Hindu Marriage Act, 1956 (HM Act ). Sub-sec. (2) of S. 28 of HM Act provides for an appeal to a Court to which the appeal lies from the Court having original jurisdiction. In this case, admittedly, appeal lies to the High Court. Section 21 of the HM Act prescribes application of Civil Procedure Code, 1908 (CPC) as far as possible. It is contended on behalf of the appellant that this appeal does not require any hearing under Order 41 Rule 11 of CPC, since it is a special right of appeal provided under the special statute. The right of appeal is available without any admission of the appeal. According to him, Order 41 Rule 11 of CPC cannot apply in respect of such an appeal.

( 2 ) MR. Jyotirmoy Bhattacharyya was along with Mr. Jiban Ratan Chatterjee were requested to assist the Court on the question. The Court records its appreciation of the assistance rendered by them.

( 3 ) SINCE S. 21 of the HM Act specifically makes it clear that all proceedings subject to the provisions contained in HM Act shall be regulated, as far as may be, by CPC. There having been no procedure provided in the Act or any Rules framed thereunder including application under Order 41 Rule 11 of CPC, the application thereof cannot be excepted. At the same time, the procedure in the High Court is governed by the Appellate Side Rules (AS Rules ). Even if the application, though assuming but not admitting, of CPC can be excluded, still then the application of the AS Rules cannot be excluded.

( 4 ) UNDER the AS Rules, Chapter V Rule 17 provisions have been made for admission of appeals specified in clause (a) thereof without being required to be set down for hearing under Order 41 Rule 11 CPC. The appeals, which are included in clause (a) do not include an appeal under S. 28 sub-sec. (2) of HM Act. Clause (b) of Rule 17 Chapter V of AS Rules prescribes that all other appeals excepting the appeals in clause (b) are required to be set down for hearing under Order-41 Rule 11 CPC. The appeals mentioned in clause (b) of AS Rules, are those, which were excluded, are the same referred to in clause (a ). Section 28 sub-sec. (1) of HM Act refers to the decree, which is an original decree, which, by reason of Order 41 CPC is required to be set down for hearing under Rule 11. But by reason of Chapter V Rule 17 clause (a) of AS Rules, the same can be admitted without hearing under Order 41 Rule 11 CPC by the Stamp Reporter as an appeal from original decree. An appeal under S. 28 (2) of HM Act is an appeal against an order, though not an appeal under Order 43 CPC, yet the miscellaneous appeal not being an appeal from original decree and not being an appeal exempted under clause (a) or clause (b) of Rule 17 Chapter V of AS Rules, is required to be set down for hearing under Order 41 Rule 11 of CPC. The application of Order 41 Rule 11 CPC cannot be excluded.

( 5 ) A special Statute may provide special remedy. Unless special provision or procedure governing such appeal is specifically made, the normal rules of procedure applicable to such Courts are applicable. Normal procedure applicable to a Court in respect of an appeal under a special statute, can be excluded only by express provision made in such statute or by express provision made in the rules governing the procedure of such Court. As observed above, by reason of Order 41 Rule 11 CPC, such an appeal is required to be set down for hearing under Order 41 Rule 11 CPC.

( 6 ) SUCH a view was taken by a Division Bench of this court in Lalit Chandra Dhar v. Abdul Rauf reported in AIR 1988 Calcutta 15 in respect of an appeal under S. 75 (3) of the Provincial Insolvency Act. The same principle can be applied to an appeal under S. 28 (2) of the HM Act. We may beneficially refer to the observation made therein, particularly, in paragraph 6, 7 and 8 as quote