Forum of appeal.

These matters have been referred by the office* for directions as to the maintainability of the above appeals. S.R. No. 37109 is an appeal against an order for judicial separation under section 10(1) of the Hindu Marriage Act of 1955. The petition for judicial separation was filed by the husband on 10th September, 1957, in Sub-Court, Tanjore. S.R. No. 14179 is an appeal against an order dismissing an application for divorce. That petition was filed by the husband who is the appellant on 17th December, 1956, in the District Court of Tiruchirappalli. The petition was

* Office Note.- A.E. 8/59 S.R. Nos. 27783, 37109, 14179 and 158. The question that arises for determination in these three cases is whether the forum for appeal under section 28 read with section 19 of the Hindu Marriage Act (Central Act XXV of 1955) against the decision of a Subordinate Judge is the High Court or the District Court in view of the powers vested in the Subordinate Courts under G.O.Ms. No. 221 (Home) dated 29th January, 1957, to exercise jurisdiction in respect of matter -arising under the Act.

According to section 19 of the Act it is the District Court that can hear the original proceedings arising under the Act.

The expression " District Court" has been defined in section 3 (4) of the Act. Under the rulemaking powers vested in the State Government under the aforesaid provision, the Government has issued G.O. Ms. No. 221 (Home) dated 29th January, 1957, empowering the Subordinate Judge to hear proceedings arising under the Act within his respective jurisdiction.

The above definition would appear to imply that even though an order is passed by a Subordinate Judge under the enabling provision contained in the Government Order aforesaid, he must "be deemed to have exercised the powers of a District Judge under section 19 of the Act. In such a case an appeal under section 28 would appear to be competent against the order of the Subordinate Judge in the High Court and not in the District Court.

But there appears to be no uniformity in the principle followed by the Subordinate Courts in respect of the entertaining of the appellate proceedings arising under the Act, because in some cases, appeals are permitted to be laid in the District Court under section 28 of the Act against the decisions of the Subordinate Judges, while in others the appeals are directly preferred to the High Court under the same provision of the enactment.

There is nothing in the Act that would warrant the filing of a Second Appeal when once an appeal has been heard and finally disposed of by the District Judge under section 28 of the Act. The present S.R. No. 27783 filed herein as C.M.S.A. in the High Court is purported to be under section 21 of the Act, while S. R. Nos. 37109 and 14179 are also sought to be presented in the High Court as Civil Miscellaneous (First) Appeals under section 28 of the Act. On account of there being no uniform practice followed with regard to the proper forum to be adopted for the appeal under section 28 of the Act in these cases, complications are bound to set in at subsequent stages, if under the same provision in the enactment both C.M.As. and C.M.S.As. are permitted to be filed in the High Court. When an aggrieved party who has chosen the High Court as the forum for his appeal under the Act, against the order of the Subordinate Judge, he is entitled to take the matter, on further appeal under Clause 15 of the Letters Patent; but the same privilege cannot be extended to an aggrieved party, who under similar circumstances has chosen the District Court as the forum for his appeal and against the appellate order of the District Court he desires to take it on a further appeal to the High Court under the same provision as a C.M.S.A. This is because, in the latter case, an appeal under Clause 15 of the Letters Patent will not be competent, unless the party has applied for and obtained a certificate at the time of delivery of judgment in the C.M.S.A. under Ru