Case Note & Summary
The appellant, Anil Narayan Mhatre, filed a Second Appeal under Section 100 of the Code of Civil Procedure, 1908, against a decree passed by the Civil Judge, Senior Division, Thane, in a Hindu Marriage Petition. The Civil Judge had been vested with the powers of a District Judge under a notification issued under Section 3(b) of the Hindu Marriage Act, 1955. The respondent, Megha Anil Mhatre, was the wife. The appellant challenged the decree on merits. The High Court admitted the appeal on 24 February 2003, framing two substantial questions of law: (i) whether the second appeal is tenable in law when it arises from a Hindu Marriage Petition decided by a Civil Judge in view of the notification under Section 3(b) of the Hindu Marriage Act, and (ii) whether, as a result of vesting powers of District Judge in the Civil Judge, the party gets a right to prefer a second appeal in contradistinction to the situation where the matter is decided by the District Judge without such notification. The Court examined Section 28 of the Hindu Marriage Act, which provides that all decrees and orders made by the court in any proceeding under the Act may be appealed from under the Code of Civil Procedure, 1908, as if they were decrees or orders of a District Court. The Court noted that the effect of the notification under Section 3(b) is to confer on the Civil Judge the jurisdiction of a District Judge for the purposes of the Act. However, Section 28 does not create a right of second appeal; it only provides for one appeal to the High Court. The Court held that the remedy available to the appellant was a first appeal to the High Court under Section 28 of the Hindu Marriage Act, and not a second appeal under Section 100 CPC. Consequently, the second appeal was not maintainable. The Court dismissed the appeal as not tenable, but granted liberty to the appellant to convert the second appeal into a first appeal, if so advised, within four weeks. The Court also directed that if such conversion is sought, the appeal shall be treated as a first appeal and decided on merits.
Headnote
A) Civil Procedure - Second Appeal - Maintainability - Hindu Marriage Act, 1955, Section 28 - Code of Civil Procedure, 1908, Section 100 - The issue was whether a second appeal lies against a decree passed by a Civil Judge Senior Division in a Hindu Marriage Petition, where the Civil Judge was vested with powers of District Judge under Section 3(b) of the Hindu Marriage Act. The Court held that Section 28 of the Hindu Marriage Act provides only one appeal to the High Court from any decree of the District Judge or Civil Judge exercising powers of District Judge. Therefore, a second appeal under Section 100 CPC is not maintainable. The remedy is a first appeal to the High Court under Section 28 of the Act. (Paras 1-3)
Issue of Consideration
Whether a second appeal lies to the High Court from a decree passed by a Civil Judge Senior Division in a Hindu Marriage Petition, when the Civil Judge exercises powers of District Judge by virtue of a notification under Section 3(b) of the Hindu Marriage Act, 1955.
Final Decision
The Court held that the second appeal is not maintainable. The appeal is dismissed as not tenable. However, liberty is granted to the appellant to convert the second appeal into a first appeal under Section 28 of the Hindu Marriage Act within four weeks. If such conversion is sought, the appeal shall be treated as a first appeal and decided on merits.
Law Points
- Second appeal not maintainable against decree of Civil Judge Senior Division in Hindu Marriage Petition
- Section 3(b) notification does not confer right of second appeal
- Section 28 of Hindu Marriage Act provides only one appeal to High Court
- Section 100 CPC not applicable
