Appeals from decrees of Subordinate Judges in proceedings under the Hindu Marriage Act, 1955, lie to the District Judge where the value of the original suit did not exceed Rs. 5,000/- and to the High Court in any other case.

Judgement

JUDGMENT :- This appeal has been carried by the defendant-husband against the decree of the learned Subordinate Judge allowing the wife s claim for restitution of conjugal rights. The application under S. 9 of the Hindu Marriage Act (hereinafter referred to as the Act ) which was registered as a suit was not valued, but the appellant has valued the appeal at Rs. 100/- and has paid court-fee of Rs. 22.50 on the memorandum of appeal.

2. Counsel for the respondent raised objection to the maintainability of the appeal in this Court in view of the disclosed valuation in the memorandum of appeal and pressed for an order to that effect being passed. Mr. Patra for the appellant, however, does not accept the objection and contends that the appeal lay to this Court.

3. Section 9 of the Act provides that the application for restitution of conjugal rights has to be made to the District Court. District Court has been defined in S. 3 (b) of the Act to mean-

"... ... ... in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act."

The State Government in exercise of this power have notified :-

"Law Department

Notification

The 30th November 1966

No. 8304-I.-J-30/66-Judl.- In exercise of the powers conferred by Cl. (b) of S. 3 of the Hindu Marriage Act, 1955 (25 of 1955), the State Government do hereby specify that every court of principal Subordinate Judge in the State of Orissa shall have jurisdiction in respect of the matters dealt with in the said Act.

By order of the Governor

B.K. PATRA

Secretary to Government."

The learned Subordinate Judge entertained the application under S. 9 of the Act on the basis of the aforesaid notification and proceeded to dispose of the case.

Section 28 of the Act prior to its amendment by Central Act 68 of 1976 provided :-

"All decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force :

Provided ... ... ..."

The Amending Act came into force with effect from May 27 of 1976, but this appeal was presented before this Court on 22-4-1976. Though there is no substantial difference between the original and the amended provisions so far as the present dispute is concerned, there can be no two opinions that the maintainability of the appeal has to be examined with reference to the unamended provision.

This appeal has been carried in terms of S. 28 of the Act. There is no dispute that the impugned judgment and decree are open to appeal but the dispute is as to the forum of appeal - whether it would be this Court or the Court of the District Judge.

4. Under S. 28 of the Act, the appeal is to be regulated by the law for the time being in force. Respondent s counsel has contended that under the procedural law in force, an appeal against the decree passed by a Subordinate Judge in a his valued up to Rs. 5,000/- lies to the District Judge and relies on the provisions of the Bengal, Agra and Assam Civil Courts Act of 1887. Sub-sec. (1) of S. 21 of that Act provides :-

"Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie-

(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees, and

(b) to the High Court in any other case."

The present appeal having been valued at Rs. 100/-, it is contended by the respondent that the forum of appeal is the court of the District Judge and not this Court.

5. A Bench of this Court in the case of Rama Kumari Meher v. Meenaketan Meher, AIR 1976 Orissa 32, while dealing wi