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Is an Order upheld by Family Court Setting Aside an Ex parte Decree Appealable ?

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K. ABDUL REHIM & R. NARAYANA PISHARADI, JJ.

ZO.P.(FC) No.265 of 2018

Dated this a 26th day of July, 2018

AGAINST THE PROCEEDINGS IN OP 1582/2014 of FAMILY COURT,ERNAKULAM

PETITIONER : VIVEK JOY

BY ADVS.DR.SEBASTIAN CHAMPAPPILLY DR.ABRAHAM P.MEACHINKARA SRI.GEORGE CLEETUS SRI.P.A.SAINUDEEN

RESPONDENT : CHINCHU GRACE LUKOSE

ORDER

Narayana Pisharadi, J.

Is an sequence upheld by a Family Court environment aside an ex parte direct appealable underneath Section 19 of a Family Courts Act, 1984 (hereinafter referred to as ‘the Act’) is a doubt mooted for decision.

2. The contribution of a box are as follows: The postulant is a father of a respondent. He filed O.P.No.1582/2014 in a Family Court, Ernakulam for extenuation a direct of stipulation that his matrimony with a respondent is nothing and void. As an choice relief, he sought a direct of divorce. The respondent was set ex parte in a case. As per a visualisation antiquated 12.05.2017, a Family Court upheld a direct of divorce in foster of a petitioner. Thereafter a respondent filed an focus to set aside a ex parte direct upheld opposite her. As per a sequence antiquated 05.03.2018 in I.A.No.2039/2017, a Family Court set aside a ex parte direct and easy O.P.No.1582/2014 to file. The postulant has approached this justice underneath Article 227 of a Constitution of India severe a aforesaid sequence upheld by a Family Court.

3. The Registry has declined to series this Original Petition filed underneath Article 227 of a Constitution of India on a belligerent that a impugned sequence upheld by a Family Court is an appealable order.

4. We have listened a schooled warn for a postulant as good as a respondent.

“19. Appeal.- (1) Save as supposing in subsection (2) and notwithstanding anything contained in a Code of Civil Procedure, 1908 (5 of 1908) or in a Code of Criminal Procedure, 1973, (2 of 1974) or in any other law, an interest shall distortion from each visualisation or order, not being an interlocutory order, of a Family Court to a High Court both on contribution and on law.

7. In a above context, doubt arises possibly a impugned sequence upheld by a Family Court environment aside a ex parte direct of divorce postulated in foster of a postulant is an interlocutory sequence or not.

8. What shall be a criteria for determining possibly an sequence is interlocutory or not? The tests to be practical to establish possibly an sequence is final or interlocutory, request as most to a polite box as to a rapist case. An sequence that does not cancel a record or finally confirm a rights of a parties is usually an interlocutory order. In other words, in typical clarity of a term, an interlocutory sequence is one that usually decides a sold aspect or a sold emanate or a sold matter in a proceeding, fit or hearing yet that does not interpretation a hearing or move during all. This would be a outcome if a tenure interlocutory sequence is interpreted in a healthy and judicious sense, though carrying review to any government (See V.C. Shukla v. State, AIR 1980 SC 962). The countenance “interlocutory order” has to be accepted in a context of a definition of a countenance “case decided” in Section 115 of a Code of Civil Procedure (See Abdul Lathif v. Saheeda, 1997 (1) KLT 734). The countenance “case” is a word of extensive import. It includes polite record other than suits, and is not singular to a entirety of a move in a polite justice (See Khanna v. Dillon, AIR 1964 SC 497). The countenance “case” is not singular in a import to a entirety of a matter in brawl in an action. A box might be pronounced to be decided, if a justice adjudicates for a functions of a fit some right or requirement of a parties in debate (See Baldevdas v. Filmistan Distributors (India) Pvt. Ltd; AIR 1970 SC 406). Any sequence that almost affects a rights of a accused, or decides certain rights of a parties can't be pronounced to be an interlocutory sequence (See Amar Nath v. State of Haryana, AIR 1977 SC 2185). Ordinarily and generally a countenance ‘interlocutory order’ has been accepted and taken to meant as a inverse of a tenure ‘final order’. But such an interpretation and a concept focus of a element that, what is not a final sequence contingency be an interlocutory order, is conjunction fitting nor justified. There might be an sequence upheld during a march of a move that might not be final in a sense, nonetheless it might not be an interlocutory sequence – pristine or elementary (See Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47). The possibly exam is possibly by support a objections lifted by a party, it would outcome in culminating a proceedings, if so any sequence upheld on such objections would not be merely interlocutory in inlet (See K.K. Patel v. State of Gujarat, AIR 2000 SC 3346 and Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd; AIR 2001 SC 3625).

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9. In K.S. Das v. State of Kerala, 1992 (2) KLT 358, a Full Bench of this Court deliberate a doubt possibly a difference ‘judgment or order’ in Section 5 (i) of a Kerala High Court Act embody interlocutory orders finally upheld in Miscellaneous Petitions in tentative Original Petitions, and if so, what were a categories of orders a legislature contemplated as being appealable. The Full Bench deliberate a eminence between final orders and interlocutory orders and hold that ‘interlocutory orders’ might meant quite procedural orders and not orders that impact or, hold on rights of parties or matters of moment, yet a categorical box is not likely of.

10. In Thankappan Nair v. Prasanna Kumari, ILR 1995 (3) Kerala 638, doubt arose as to what is a breadth of a countenance “interlocutory order” in a context of Section 19 of a Act. The Division Bench hold that, definition of interlocutory sequence in Section 19 of a Act shall be accepted as an sequence that is not a final order.

11. In Abdul Rasheed v. State of Kerala, ILR 2008 (4) Kerala 353, a Single Bench of this Court hold that, a law appears to be good staid that all orders can't be categorised into dual H2O parsimonious compartments of interlocutory orders and final orders. Between these dual categories of orders, another third difficulty of orders exists that are described to be middle orders. The orders that are not particularly final and that impact a rights of parties substantially, yet upheld during middle theatre of a tentative proceedings, will tumble underneath this third difficulty of middle orders.

12. In Ramabhadran v. Bindu (Judgment antiquated 23.11.2015 in OP (FC) No. 393 of 2015), a Division Bench of this justice consisting of one of us (Justice C.K. Abdul Rehim) has hold that a supplies contained in Order XLIII Rule 1 of a Code of Civil Procedure,1908 are not germane to orders upheld by a Family Court. It was a box in that plea was done not opposite a sequence upheld by a Family Court environment aside ex parte decree, yet usually opposite a conditions imposed by a Family Court while environment aside a ex parte decree.

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13. In Manga Lakshmi v. Basanth Kumar, 2016 (3) KHC 111, a Division Bench of this justice consisting one among us (Justice C.K. Abdul Rehim) deliberate a parameters for determining possibly an sequence is interlocutory or not. But, a doubt was deliberate in that box in a context of determining possibly an sequence of a Family Court extenuation proxy claim is interlocutory or not. The observations done by this Court in divide 12 of this preference have to be accepted in that context.

14. It is good staid that an sequence of a Family Court dismissing an focus filed for environment aside an ex parte direct is not an interlocutory sequence and that it is appelable (See Shameer v. Jamsheena, 2017(5) KHC 656).

15. Learned warn for a postulant would contend that graphic an sequence dismissing a focus for environment aside a ex parte decree, an sequence permitting such focus revives a categorical record and therefore, such an sequence has to be deliberate as an interlocutory order, that is not appealable. There is no effect in this contention. Revival of a fit or categorical record is a outcome or effect of a sequence permitting a focus for environment aside a ex parte decree. It is not sufficient to dress such an sequence with a characteristics of an interlocutory order. (emphasis supplied).

17. The direct contained in Ram Sarup (supra) is an management for a tender that a record in an focus to set aside a ex parte direct has to be deliberate as eccentric proceedings, apart and graphic from a fit or a categorical proceedings. If that be so, a sequence upheld in such an focus can be treated as an sequence bringing finality in that proceedings. As distant as such an focus is concerned, any sequence upheld therein possibly permitting or dismissing a application, is a final sequence and not an interlocutory order.

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19. The doubt can be examined from another angle also. An sequence is not a final sequence unless it finally decides a rights of a parties. To decider possibly a sequence is final, it is not always required to relate a preference in each box with a contribution in controversy. The answer to a doubt possibly a sequence is final or not will not count on possibly a debate between a parties is finally motionless or not by such an order. (emphasis supplied).

23. We are in deferential agreement with a above perspective voiced by a Allahabad and Orissa High Courts.

24. We shall now interpretation a contention and sum adult a opinion as follows: The record in an focus for environment aside an ex parte direct have to be treated as independent, apart and graphic record from a strange or categorical proceedings. The preference in such application, possibly permitting or dismissing it, finally terminates a record in a application. It is not an interlocutory order. It is an sequence that almost affects a rights of a plaintiff in a fit or a postulant in a categorical proceedings. The exam as to possibly a sequence determines a rights of a parties in debate in a strange record instituted by one of them would not request to a move eccentric of such strange proceedings. If a sequence finally determines a debate in an eccentric move and that move is likely of, a sequence is final in so distant as a debate therein is concerned. The answer to a doubt possibly a sequence is final or not will not count on possibly a debate in a categorical record is finally over, yet possibly a debate lifted in a apart and eccentric record is finally over or not. The sequence permitting or dismissing an focus for environment aside a ex parte decree, is therefore, not an interlocutory sequence within a ambit of Section 19(1) of a Act and it is appealable underneath a pronounced provision.

25. Consequently, in a arise of an influential or rather some-more influential choice pill in a form of appeal, a petition underneath Article 227 of a Constitution of India contingency be hold to be not maintainable. The postulant has no box that, inspite of carrying such some-more influential choice pill there are special resources that might enforce this justice to perform a petition underneath Article 227 of a Constitution of India.

 

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