HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 06.08.2019
Delivered on 10.12.2019
Court No. – 34
Case :- FIRST APPEAL No. – 231 of 2015
Appellant :- Smt. Shashi Bala
Respondent :- Rajendrapal Singh
Counsel for Appellant :- Satyender Kumar Singh
Counsel for Respondent :- Pankaj Agarwal
Hon’ble Sudhir Agarwal,J.
Hon’ble Rajeev Misra,J.
(Delivered by Hon’ble Rajeev Misra, J.)
1. Present First Appeal under Section 19 of Family Courts Act 1984 (hereinafter referred to as Act 1984) has been filed by Appellant i.e. wife challenging judgement dated 13.03.2015 and decree dated 27.03.2015 passed by Principal Judge, Family Court, Ghaziabad in Suit No. 367 of 2005 (Sri Rajendra Pal Singh Vs. Smt. Shashi Bala) filed by Plaintiff i.e. husband under Section 13 (I) of Hindu Marriage Act 1955 (hereinafter referred to as Act 1955) whereby aforesaid Suit has been decreed resulting in annulment of marriage of parties held on 04.12.1996.
2. We have heard Mr. Satyendra Kumar Singh, learned counsel for Defendant-Appellant (hereinafter referred to as Appellant) and Mr. Tarun Agarwal, Advocate holding brief of Mr. Pankaj Agarwal, learned counsel representing Plaintiff-Respondent (hereinafter referred to as Plaintiff).
3. Plaintiff filed Original Suit No.237 of 2004 (Sri Rajendra Pal Singh Vs. Smt. Shashi Bala) under Section 13 (1) of Act 1955 for a decree of divorce on the ground of ‘cruelty’ committed by Appellant. According to plaint allegations, marriage of Plaintiff was solemnized with Appellant on 04.12.1996 at Aligarh in accordance with Hindu Rites and Customs. From aforesaid wedlock two children namely Krishan Kant and Jatin Pal were born. Appellant was working as a teacher in Government Girls Inter College, Vijay Nagar, Ghaziabad but on her request transferred to Moradabad. Plaintiff is working in Indian Navy and posted at Sena Bhawan, New Delhi. Accordingly, Plaintiff is getting handsome salary. As such, Plaintiff can maintain his family including Appellant and himself. Subsequently, relationship between Plaintiff and Appellant became strained. According to Plaintiff, it is Appellant, who is responsible for such sorry state of affairs; she is a short tempered lady with bad character; her behaviour towards Plaintiff as well as other relatives of Plaintiff was never cordial; she is guilty of telling lies and further uncareful to maintain good relations; she was completely under pressure of her parents; not willing to keep good and cordial relations with Plaintiff; Parents of Appellant are greedy and want to extort money earned by Plaintiff as well as Appellant; she used to leave residence of Plaintiff without informing him; used to absent herself from School; went to some unknown place without informing Plaintiff; when Plaintiff attempted to enquire about such conduct, she became furious and did not categorically reply to the query made by Plaintiff. In such circumstances, according to Plaintiff, minor children were facing difficulty and further their future was also said to be in dark. Appellant left house of Plaintiff in 1999. However, due to intervention of some respectable persons a compromise was arrived at between parties on 22.04.1999. She committed breach of aforesaid compromise, which was unbecoming of an obedient wife. Appellant ultimately abandoned house of Plaintiff on 28.02.2004. Since then Appellant is not residing with Plaintiff. On the aforesaid factual premise, it was prayed that suit filed for divorce be decreed.
4. Suit was contested by Appellant. She accordingly filed a written statement dated 06.07.2005 denying plaint allegations. Additional pleas were also raised by Appellant. Factum regarding marriage and birth of two children from wedlock of parties was admitted. She also admitted of serving as Lecturer at Government Girls Inter College, Vijay Nagar, Ghaziabad but later on transferred to Cantt. Moradabad. It was further admitted that Plaintiff is working in Indian Navy and posted at New Delhi. However, rest of the averments made in plaint were denied. According to Appellant wild allegations have been made by Plaintiff against Appellant without there being any cogent reason behind the same; charges levelled against her character have caused physical and mental cruelty upon her; behavior of with her was rude and abusive; it was Plaintiff, who has tortured physically and mentally for demand of dowry; Plaintiff himself was of a shady character as he frequently used to stay at his Bhabhi’s residence at Kavi Nagar, Ghaziabad; when aforesaid conduct of Plaintiff was objected by Appellant, Plaintiff cooked a false story against her; it is only when aforesaid conduct of Plaintiff became unbearable that Appellant went to Moradabad and is residing there since then. On the aforesaid defence, Appellant pleaded for dismissal of suit for divorce filed by Plaintiff.
5. Court below upon consideration of pleadings of parties framed following two issues for consideration:
A. Whether Plaintiff is entitled to decree of divorce on grounds mentioned in the plaint.
B. Any other relief, if admissible.
6. After issues were framed by Court below, parties went to trial. Plaintiff in support of his case adduced himself as P.W.-1, V. P. Singh as P.W.-2, Smt. Ram Saheli Sharma as P.W.-3 and Dr. Ramesh Kumar Verma as P.W.-4. Further vide list of documents (Paper No. 19 Ga), Plaintiff filed large number of documentary evidence in proof of his case. Appellant in support of her defence adduced only herself as D.W.-1. No other witness was adduced by Appellant nor any documentary evidence was filed by her in support of her defence.
7. Court below upon consideration of pleadings, oral and documentary evidence on record decided issues framed by it. In respect of Issue no.1, Court below concluded that Plaintiff is clearly entitled to grant of decree of divorce in terms of Section 13 (1) (1b) of Act 1955 i.e. on the ground of ‘desertion’. Court below however concluded that Plaintiff has failed to establish commission of any physical or mental ‘cruelty’ upon him by Appellant. In the opinion of Court below, from material filed by Plaintiff it is apparent that it is Plaintiff, who has committed mental cruelty upon Appellant. However, since it is an admitted position that Appellant has ‘deserted’ Plaintiff for the last 11 years and aforesaid fact, is an admitted fact therefore same is not required to be proved under SectionIndian Evidence Act. Consequently, suit for divorce filed by Plaintiff was decreed by Court below on the ground of ‘desertion’ vide judgement dated 13.03.2015 and decree dated 27.03.2015.
8. Feeling aggrieved by aforesaid judgement and decree passed Court below, wife i.e. Appellant has now approached this Court by means of present First Appeal.
9. Mr. Satyendra Kumar Singh, learned counsel for Appellant in challenge to judgement and decree passed by Court below submits that same are patently illegal and in excess of jurisdiction. According to learned counsel for Appellant, Court below while passing aforesaid judgement and decree has only considered case of Plaintiff; no attempt has been made to find out why Appellant was forced to leave matrimonial home on 28.02.2004 alongwith her two children; Plaintiff was also under moral and legal obligation to maintain his wife and minor children; There did not exist any explanation on the part of Plaintiff for his failure to discharge aforesaid moral and legal obligation; In fact, there is complete silence on the part of Plaintiff right from 28.2.204 in not taking any action for restitution of conjugal relationship between parties or to discharge of his moral and legal obligations; and the same denote the clever attitude of Plaintiff.
10. Mr. Tarun Agarwal, Advocate holding brief of Mr. Pankaj Agarwal, learned counsel for Plaintiff submits that Court below has decreed suit of Plaintiff on the ground of proved ‘desertion’ which is perfectly just and legal. He further submits that parties have been living separately since 28.02.2004 and therefore, Court below has done justice to parties by decreeing suit for divorce filed by Plaintiff. He has further tried to support impugned judgement and decree on the strength of findings recorded therein as well as observations made by Court below.
11. Varied arguments raised by counsel for parties give rise to only determination as under:
A. Whether judgement and decree passed by Court below on the ground of ‘desertion’ on part of Appellant can be sustained in law and fact.
12. Since the issue involved in present appeal relates to Section 13 of Act 1955, it is appropriate to reproduce the same for ready reference:
” 13 Divorce. –(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.–In this clause,–
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
Explanation. In this sub-section, the expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
(1-A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground–
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation. –This clause applies whether the marriage was solemnised before or after the commencement of the SectionMarriage Laws (Amendment) Act, 1976 (68 of 1976).
Uttar Pradesh.– In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in Sectionsection 13–
(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following
“(1-a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and
(ii) for clause (viii) (since repealed) substituted and deem always to have been so substituted for following.
” (viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and–
(a) a period of two years has elapsed since the passing of such decree, or
(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or”.”
13. Section (1) (i-b) of Act of 1955 provides that a decree of divorce can be granted in case after the solemnization of marriage, the petitioner has been treated with ‘cruelty’. Similarly Section 13 (I) (i-b) of Act 1955 provides for grant of decree of divorce provided the other party has ‘deserted’ petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
14. Admittedly, Plaintiff filed above mentioned suit for divorce on the grounds of ‘cruelty’ as well as ‘desertion’. Court below upon consideration of pleadings as well as oral and documentary evidence on record concluded that Plaintiff has failed to prove commission of physical or mental ‘cruelty’ by Appellant upon him. To the contrary, Court below conluded that in fact ‘cruelty’ has been committed by Plaintiff upon Appellant. Therefore, plea of ‘cruelty’ raised by Plaintiff, as a ground of divorce, stands negated by Court below. There is no cross appeal by Plaintiff or a regular appeal challenging aforesaid finding recorded by Court below. As such, conclusion drawn by Court below that Plaintiff has failed to establish commission of physical or mental ‘cruelty’ by Appellant upon him has become final. Consequently, this Court cannot examine correctness of aforesaid finding recorded by Court below.
15. Court below has decreed suit of Plaintiff on the ground of desertion. On evaluation of pleadings and material on record Court below has concluded that Appellant has deserted Plaintiff on 28.02.2004 and since then parties are living separately. Court below has further observed that upto date of delivery of judgement, more than 11 years have rolled by and parties have not met each other. Reference was also made to various other pleadings showing intention of parties not to live together. On aforesaid factual premise, Court below concluded that there is proved ‘desertion’ on the part of Appellant and consequently decreed suit for divorce filed by Plaintiff.
16. Mr. Satyendra Kumar Singh, learned counsel for Appellant submits that in order to decree a suit for divorce on the ground of ‘desertion’ precondition provided in Section 13 (I) (ib) of Act 1955 has to be fulfilled on the date of presentation of plaint. According to counsel for Appellant, date of ‘desertion’ on the part of Appellant stated in plaint is 28.02.2004 whereas plaint itself was presented on 07.03.2005. He thus submits that on the date of presentation of plaint, a period of two years had not rolled by and therefore, mandatory requirement of Section 13(I) (ib) of Act 1955 was not fulfilled. Consequenlty, Court below could not have decreed suit of Plaintiff on the ground of ‘desertion’. As such, judgement and decree passed by Court below is manifestly illegal and liable to be set aside by this Court.
17. Mr. Tarun Agarwal, Advocate on the other hand has supported impugned judgement and decree passed by Court below. According to counsel for Plaintiff, irrespective of factual scenario that period of two years had not elapsed on the date of presentation of plaint, yet it is an undisputed fact that Appellant has remained in ‘desertion’ for the last 15 years. He has also referred to pleadings of parties showing their disinclination for residing together. He thus urged that even if decree passed by Court below cannot be sustained on the ground of proved ‘desertion’, still it can be maintained on the ground of ‘irretrievable break down’ of marriage. Forcing the parties to live together after such a long period of self imposed isolation would itself cause injustice rather than doing justice to parties.
18. Section 13(I) (ib) of Act 1955 is a mandatory provision and therefore, if a suit for divorce is filed on the ground of ‘desertion’, the precondition provided in above Section for grant of decree of divorce on the ground of desertion must be fulfilled on the date of presentation of suit. Admittedly, date of desertion by Appellant, pleaded in plaint is 28.02.2004 whereas plaint was presented on 07.03.2005. Evidently, period of two years of desertion on the part of Appellant had not expired on the date of presentation of plaint. Therefore, precondition provided in Section 13(I) (i-b) of Act 1955 was not fulfilled on the date of presentation of suit. Subsequent events which have taken place after the institution of suit are irrelevant as same cannot be taken into consideration under scheme of Act 1955. Therefore, we have no hesitation to hold that decree passed by Court below decreeing suit for divorce filed by Plaintiff on ground of ‘desertion’ is manifestly illegal.
19. With regard to the argument relating to irretrievable break down of marriage, we find from perusal of plaint that no such ground was pleaded in the plaint. Therefore, question that crops up for consideration is “whether a decree of reversal can be passed on a ground which was not the subject matter of adjudication before the Court below.”
20. The issue relating to irretrievable break down of marriage has been considered by a Division Bench of this Court in First Appeal No. 525 of 2006 (Smt. Kavita Sharma Vs. Neeraj Sharma) decided on 7.2.2018, wherein it has been observed as follows in paragraph 28:-
“28. The above findings recorded by Court below could not be shown perverse or contrary to record. Having considered the fact that parties are living separately from decades, we are also of the view that marriage between two is irretrievable and has broken down completely. Irretrievable breakdown of marriage is not a ground for divorce under Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, Courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the Court’s decree. On the ground of irretrievable marriage, Courts have allowed decree of divorce and reference may be made to SectionNaveen Kohli v. Neelu Kohli (2006) 4 SCC 558 and Rishikesh Sharma Vs. Saroj Sharma, 2006(12) SCALE 282. It is also noteworthy that in SectionNaveen Kohli v. Neelu Kohli (supra) Court made recommendation to Union of India that Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for grant of divorce. ”
21. Similarly this Court in First Appeal No. 792 of 2008 (Ashwani Kumar Kohli Vs. Smt. Anita) decided on 17.11.2016 has also considered this question and observed as follows in paragraphs 7, 8, 10, 11, 12 and 13:-
“7. Therefore, point for adjudication in this appeal is “whether a decree of reversal can be passed by granting divorce to the appellant on the ground which was not subject matter of adjudication before the Court below and is being raised for the first time in appeal”.
8. Under the provisions of Act, 1955 there is no ground like any “irretrievable breakdown of marriage”, justifying divorce. It is a doctrine laid down by judicial precedents, in particular, Supreme Court in exercise of powers under SectionArticle 142 of the Constitution has granted decree of divorce on the ground of irretrievable breakdown of marriage.
10. This aspect has been considered by this Court in Ram Babu Babeley Vs. Smt. Sandhya AIR 2006 (All) 12 2006 AWC 183 and it has laid down certain inferences from various authorities of Supreme Court, which read as under:-
“(i) The irretrievable break down of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, this circumstance can be taken into consideration as laid down by Hon’ble Apex Court in the case of Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and V. Bhagat versus D. Bhagat, AIR 1994 SC 710.
(ii) No divorce can be granted on the ground of irretrievable break down of marriage if the party seeking divorce on this ground is himself or herself at fault for the above break down as laid down in the case of Chetan Dass Versus Kamla Devi, AIR 2001 SC 1709, Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and SectionShyam Sunder Kohli v. Sushma Kohli, (2004) 7 SCC 747.
(iii) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties can not live together as laid down in Chandra Kala Trivedi versus Dr. SP Trivedi, (1993) 4 SCC 232.
(iv)The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases also where the conduct or averments of one party have been so much painful for the other party ( who is not at fault) that he cannot be expected to live with the offending party as laid down in the cases of V. Bhagat versus D. Bhagat, (supra), Ramesh Chander versus Savitri, (1995) 2 SCC 7, Ashok Hurra versus Rupa Bipin Zaveri, 1997(3) AWC 1843 (SC), 1997(3) A.W.C. 1843(SC) and A. Jayachandra versus Aneel Kaur, (2005) 2 SCC 22.
(v) The power to grant divorce on the ground of irretrievable break down of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties, as observed by Hon’ble Apex Court at paragraph No. 21 of the judgment in the case of V. Bhagat and Mrs. D. Bhagat, AIR (supra) and at para 12 in the case of Shyam Sunder Kohli versus Sushma Kohli, (supra).”
11. The above authorities have been followed by this Court in ”Pradeep Kumar Vs. Smt. Vijay Lakshmi’ in 2015 (4) ALJ 667 wherein one of us (Hon’ble Sudhir Agarwal,J.) was a member of the Bench.
12. In Vishnu Dutt Sharma Vs. Manju Sharma, (2009) 6 SCC 379, it was held that under Section 13 of Act 1955 there is no ground of irretrievable breakdown of marriage for granting decree of divorce. Court said that it cannot add such a ground to Section 13, as that would amount to amendment of Act, which is the function of legislature. It also referred to some judgments of Supreme Court in which dissolution of marriage was allowed on the ground of irretrievable breakdown but held that those judgments do not lay down any precedent. Supreme Court very categorically observed as under:-
“If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Court. Hence, we do not find force in the submission of learned counsel for the appellant.”
13. The above view has been followed in Darshan Gupta Vs. Radhika Gupta (2013) 9 SCC 1. Similar view was expressed in ”Gurubux Singh Vs. Harminder Kaur’ (2010) 14 SCC 301. This Court also has followed the above view in Shailesh Kumari Vs. Amod Kumar Sachan 2016 (115) ALR 689.”
22. In the case in hand, we find that the parties have not been living separately on account of their own free will. Record shows that it is plaintiff, who has refused to keep Appellant alongwith minor children with him. Appellant has categorically pleaded that intention of Plaintiff since beginning was to spoil matrimonial life. Plaintiff never discharged his liability towards Appellant i.e. his wife nor paid attention towards his children. In this view of matter, argument raised by learned counsel for Appellant that there has been an irretrievable break down of marriage has no factual foundation. That apart, this Court in Ashwani Kumar Kohli (supra) has held that divorce cannot be granted on the aforesaid ground particularly when such a plea is raised by one party alone. In addition to aforesaid, decree of divorce was not prayed for on ground of irretrievable break down of marriage as parties are alleged to have been living separately since 28.02.2004. Plaint of above mentioned divorce suit was presented in 2005 whereas divorce petition was finally decided vide judgement dated 13.03.2015 and decree dated 27.03.2015 passed by Principal Judge (Family Court), Ghaziabad in Suit No. 367 of 2005 (Sri Rajendra Pal Singh Vs. Smt. Shashi Bala). For a period of eleven long years, Plaintiff kept quiet and now for the first time, this issue has been raised. Thus we are of the considered opinion that Plaintiff is estopped from raising this plea.
23. In the light of law laid down by Apex Court and the facts of case, the following undisputed position emerges. Appellant has left her matrimonial home on 28.02.2004. From 28.02.2004 till today, i.e. for more than fifteen years parties, they have been living in isolation. There is no evidence on record that Plaintiff made any attempt for restitution of conjugal rights. There is also no evidence showing action taken by Plaintiff in discharge of his moral and legal obligations towards his wife i.e. Appellant and minor children. Court below has recorded conclusive finding that it is Plaintiff who has committed physical / mental ‘cruelty’ upon Appellant and not vice-versa. In view of aforesaid findings, it cannot be said that Appellant has ‘deserted’ Plaintiff and that too without any reasonable cause. On the contrary, she has been forced to leave her matrimonial home.
24. In the aforesaid backdrop, we are unable to uphold impugned judgement and decree passed by Court below. The appeal succeeds and is allowed. Impugned judgement dated 13.03.2015 and decree dated 27.03.2015 passed by Principal Judge, Family Court, Ghaziabad in Suit No. 367 of 2005 (Sri Rajendra Pal Singh Vs. Smt. Shashi Bala) are hereby set aside. Aforesaid suit filed by Plaintiff shall stand dismissed.
25. Considering the facts and circumstances of case, we quantify the cost at Rs.2 Lakhs to be paid by Plaintiff to Appellant within a period of one month from today by means of an account payee draft drawn in favour of Appellant, failing which, Court below shall proceed to recover same as if it is recovery pursuant to an order passed by Court below itself.
Order Date :- 10.12.2019