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1985 Supreme(Guj) 104
Gujarat High Court
Judgename :J.P.DESAI
MANIBEN D/o.MITHALAL PARMAR AND W/o.GOPALBHAI - Appellant
Versus
GOPALBHAI PUNJABHAI DHANKA - Respondent
First Appeal 560 of 1985
Decided On : 07/12/1985
Headnote:
Hindu Marriage Act, 1956 - Section 28 - Bombay Civil Courts Act, 1869 - Section 8 - Decree passed - Memo of Appeal - Appeal is not maintainable before this Court - Appeal arises out of judgment and decree passed by learned Assistant Judge in Hindu Marriage Petition looking to provisions it is clear that appeal will lie to District Court and not to this Court - Such a view has been taken by this Court in First Appeal decided on First Appeal decided on Memo of Appeal is therefore required to be returned to appellant for presentation to proper Court - It is therefore directed that Memo of Appeal along with certify to copies of judgment and decree be returned to appellant for presentation to proper Court - Appellant is given time upto present appeal before appropriate District Court - Held, seems that when question of condoning delay was considered been this Court attention was not drawn to fact that appeal is not maintainable before this Court - When appeal is not main unable before this Court then question of condoning delay by this Court will not arise - It will now be for District Court to consider question of condonation of delay - Appellant will be at liberty to make appropriate application for condonation of delay in filing appeal before appropriate District Court and District Court will consider question of condoning delay according to law - Order accordingly
( 1 ) THIS appeal arises out of the judgment and decree passed by the learned Assistant Judge Panchmahals at Godhra in Hindu Marriage Petition No. 14 of 1982.
( 2 ) LOOKING to the provisions of sec. 28 of the Hindu Marriage Act 1956 and secs. 8 and 26 of the Bombay Civil Courts Act 1869 it is clear that the appeal will lie to the District Court and not to this Court. Such a view has been taken by this Court in First Appeal No. 1603 of 1983 decided on 24-2-1984 First Appeal No. 1812 of 1584 decided on 5-2-1985 and First Appeal No. 1125 of 1983 decided on 20 The Memo of Appeal is therefore required to be returned to the appellant for presentation to proper Court. It is therefore directed that the Memo of Appeal along with the certify to copies of the judgment and decree be returned to the appellant for presentation to proper Court. The appellant is given time upto 26-7-1985 to present the appeal before the appropriate District Court.
( 3 ) IT may be mentioned here than there was delay of 93 days ill filing the appeal before this Court and the delay has been condoned vide order passed in Civil Application No. 588 of 1985 It seems that when the question of condoning delay was considered been this Court attention was not drawn to the fact that the appeal is not maintainable before this Court. When the appeal is not main unable before this Court then the question of condoning the delay by this Court will not arise. It will now be for the District Court to consider the question of condonation of delay. The appellant will be at liberty to make appropriate application for condonation of delay in filing the appeal before the appropriate District Court and the District Court will consider the question of condoning the delay according to law. (KMV) order accordingly.
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