IMPORTANT POINT
Order allowing application under Order 9 Rule 13 CPC for setting aside exparte divorce decree is not interlocutory order and appeal against such order is maintainable under Section 19 of Family Courts Act.

K.R. Mohapatra, J.—This Matrimonial Appeal has been filed assailing the order dated 12.3.2015 passed by learned Judge Family Court, Cuttack in Misc. Case No.118 of 2012 allowing an application for setting aside the ex-parte judgment dated 08.12.2008 passed in C.P. No.78 of 2007. When the matter was taken up for admission, this Court by order dated 20.04.2015, raised a doubt with regard to maintainability of this Appeal under Section 19 of the Family Courts Act, 1984 (for short, ‘the Act,1984’). Again on 04.05.2015, the matter was taken up for consideration of the issue of maintainability of this Appeal, when this Court felt it proper to issue notice to the respondents indicating therein that the matter would come up on 15th July, 2015 for final adjudication on the question of maintainability. The matter was thereafter adjourned to different dates and the parties have filed their written arguments in support of their case in the meanwhile. The matter was ultimately heard on 29.08.2016 on the question of maintainability of the appeal. Since the maintainability of the appeal is the issue involved for adjudication at present, this Court is not required to delve in detail into the facts and merit of the appeal except some relevant facts necessary for proper adjudication of the issue which is stated hereunder in brevity.

2. The marriage between the parties to the Appeal was solemnized on 07.12.2001 according to Hindu rites and custom. As some dissensions arose between the parties, the Appellant filed C.P. No.78 of 2007 in the Court of the Judge Family Court, Cuttack under Section 13 of the Hindu Marriage Act, 1955 (for short, the ‘Act,1955’). Due to non-appearance of the respondent (wife), she was set ex parte on 29.08.2008 and ex parte decree of divorce was passed on 08.12.2008. The respondent filed an application under Order 9 Rule 13, CPC for setting aside the ex parte decree on 03.10.2012, which was registered as Misc. Case No.118 of 2012. By order dated 12.03.2015, the Judge Family Court, Cuttack set aside the ex parte decree dated 08.12.2008 and restored C.P. No.78 of 2007 to file, which is under challenge in this Appeal.

3. Heard Mr.N.K.Sahu, learned counsel for the Appellant and Mr.Pravat Kumar Mohanty, learned counsel for the respondent. Perused the written notes of argument filed by the parties along with citations enclosed therewith. The question of maintainability of the Appeal has been raised by this Court apparently relying upon a decision of the Hon’ble Supreme Court in the case of Bhulan Rout and another Vs. Lalbahadur Yadav, reported in (2004) 13 SCC 679. In the said case, Hon’ble Supreme Court has categorically held that no appeal is expressly provided under Order 43 of CPC against order allowing an application under Order 9 Rule 13, CPC. Hence, no appeal lies against order allowing an application under Order 9 Rule 13, CPC.

4. In order to advert to the issue of maintainability, it requires close reading of the provision under Section 19 of the Act, 1984 which is the substantive provision for appeal to the High Court against a judgment and order of the Family Court. It reads as follows:-

“19. Appeal.- (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908(5 of 1908), or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):

Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before the commencement of the Family Courts (Amendment) Act, 1991.

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