( 1 ) THIS is an appeal under Sec. 28 of the Hindu Marriage act, 1955 against the judgment and decree dated 21-4-1997 recorded by the learned Second Extra Assistant Judge, Ahmedabad (Rural) at Mirzapur in Hindu marriage Petition No. 7 of 1995, whereby the learned Judge was pleased to dismiss the said petition of the present appellant filed under Sec. 13 (l) (a) and under sec. 13 (l) (b) of the Hindu Marriage Act, 1955 (for short the Act) for getting divorce against the present respondent on the grounds of cruelty and desertion.

( 2 ) ). The appeal was admitted on 4-10-2000 by this Court. The respondent was served and Mr. Ashish H Shah, learned Advocate appears on behalf of the respondent. I have heard the learned Advocates for the parties and have perused the papers. At the commencement of argument, a preliminary objection was raised about maintainability of the appeal.

( 3 ) ). It is clear that the Hindu Marriage Petition filed by the present appellant was dismissed by the learned Second Extra Assistant Judge, Ahmedabad (Rural), mirzapur. The question is whether the appeal lies to the District Court or to the High Court. For the said purpose, it is required to consider the provisions made in Sec. 16 of the Bombay Civil Courts Act, 1869 read with Sec. 28 of the said Act.

( 4 ) ). So far as Sec. 28 of the said Act is concerned, it is positively made clear therein that all decrees made by the Court in any proceedings under the act shall, subject to the provisions of sub-sec. (3), be appealable as decrees of the Court made, in exercise of the original civil jurisdiction of the appellate court.

( 5 ) ). Therefore, we will have to turn to the provisions made in Sec. 16 of the Bombay Civil Court Act, 1869. The relevant provisions of Sec. 16 may be reproduced as under :"where the Assistant Judges decrees and orders in such cases are appealable, the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject-matter does not exceed or exceeds fifty thousand rupees. "in other words, if the valuation of the subject-matter exceeds the amount of rs. 50,000/-, the appeal may lie to the High Court. If the valuation of the subject-matter does not exceed the amount of Rs. 50,000/-, the appeal will lie to the District Court. This is naturally the provision for appeal against the decree and order passed by an Assistant Judge.

( 6 ) ). In the present matter, the judgment and decree have been passed by the learned Second Extra Assistant Judge. Therefore, it is a judgment and decree of an Assistant Judge, within the meaning of Sec. 16 of the Bombay Civil Courts act, 1869. Therefore, if we read the provisions of Sec. 16 of the Bombay civil Courts Act with Sec. 28 of the said Act, then the combined reading of these two provisions makes it clear that the appeal against the judgment and decree of the learned Assistant Judge will lie to the District Court, provided, valuation of the subject-matter does not exceed the amount of Rs. 50,000/ -. In the present case, the valuation of the subject-matter for Court fees is shown as Rs. 37. 50. Even in this appeal, the Court fees have been paid in a sum of Rs. 37. 50. The petition does not show any other claim therein. Therefore, the relief has been confined to the provisions made in Sec. 13 of the said Act. This would necessarily mean that the valuation of the subject-matter in the aforesaid petition of the appellant before the District Court did not and does not exceed the amount of Rs. 50,000/ -. Even for the purpose of this appeal, the valuation of the subject-matter does not exceed the amount of Rs. 50,000/ -.

( 7 ) ). It is, therefore, clear that the valuation of the petition before the trial court as well as before this Court does not exceed Rs. 50,000/ -. In that view of the matter, in my opinion, the appeal will lie to the District Court and not to this Court.

( 8 ) ). In this regard, I am fortified by the decision of this Court recorded in t