An appeal must be filed under Section 19(1) of the Family Courts Act against a final order, making a Writ Petition not maintainable.

J U D G M E N T

Basant, J.

The petitioner has come to this Court with this Writ Petition under Article 226 of the Constitution of India to assail Exhibit P6 order, which is one passed evidently under Order IX Rule 13 of the Code of Civil Procedure. By that order the prayer for setting aside an ex parte decree has been dismissed.

2. The respondent herein who is the mother-in-law of the petitioner had filed O.P.No.738/99 against the petitioner claiming return of gold ornaments and cash and for payment of maintenance for the daughter of the petitioner. In that Original Petition, an ex parte order was passed. The petitioner filed an application to set aside that ex parte order. Vide impugned order, the said request was turned down and the petition was dismissed.

3. The petitioner claims to be aggrieved by the impugned order, Exhibit P6. He wants to challenge that order. Instead of W.P.(C)No.9091/09 -2-

filing an appeal under Section 19 (1) of the Family Courts Act , the petitioner has come to this Court with this petition under Article

226/227 of the Constitution of India.

4. Called upon to explain how such a Writ Petition is maintainable, when the petitioner has the statutory right of appeal under Section 19 (1) of the Family Courts Act , the learned counsel for the petitioner asserts that no appeal would be maintainable under (1) and hence the only avenue of challenge which the petitioner has, is under Article 226/227 of the Constitution of India.

5. The counsel presses the point and we have hence given the counsel a patient hearing. The counsel relied on sections 19(1) and 19(5) of the Family Courts Act . We extract Section 19 below.

“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.

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(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).

(3) Every appeal under the Section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.

(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.”

(emphasis supplied)

6. A simple reading of the statutory provisions clearly reveals that in respect of matters not covered under sub-section W.P.(C)No.9091/09 -4-

(2) not withstanding anything contained in the Code of Civil Procedure and the Code of Criminal Procedure, challenge must be by an appeal under Section 19 (1). Of course, there is a rider that the order challenged should not be an interlocutory order. On the plain meaning of (1), we find it impossible to entertain any doubt or controversy. (5) makes it clear further that no revision or appeal shall lie to any court from any judgment, order or decree of a Family Court, except as stipulated above.

7. The legislative intention as reflected i