Maniben vs Gopalbhai Punjabhai Dhanka

J.P. Desai, J.—This appeal arises out of the judgment and decree passed by the learned Assistant Judge Panchmahals at Godhra in Hindu Marriage Petition No. 14 of 1982.

Looking to the provisions of Section 28 of the Hindu Marriage Act, 1956 and Sections 8 and 26 of the Bombay Civil Courts Act, 1869, it is clear that the appeal will lie to the District Court and not to this Court. Such a view has been taken by this Court in First Appeal No. 1603 of 1983 decided on 24-2-1984, First Appeal No. 1802 of 1984 decided on 5-2-1985 and First Appeal No. 1125 of 1983 decided on 20-6-1985. The Memo of Appeal is, therefore, required to be returned to the appellant for presentation to proper Court. It is, therefore, directed that the Memo of Appeal along with the certified copies of the judgment and decree be returned to the appellant for presentation to proper Court. The appellant is given time upto 26-7-1985 to present the appeal before the appropriate District Court.

It may be mentioned here that there was delay of 93 days in filing the appeal before this Court and the delay has been condoned, vide order passed in Civil Application No. 588 of 1985. It seems that when the question of condoning delay was considered by this Court, attention was not drawn to the fact that the appeal is not maintainable before this Court. When the appeal is not maintainable before this Court, then the question of condoning the delay by this Court will not arise. It will now be for the District Court to consider the question of condonation of delay. The appellant will be at liberty to make appropriate application for condonation of delay in filing the appeal before the appropriate District Court and the District Court will consider the question of condoning the delay according to law.