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Judgment
Ali, C. J.
(1) The present reference to the Full Bench was necessitated by a preliminary objection taken by the counsel for the respondent before a Division
Bench of this court which heard the appeal that the present appeal was not maintainable and did not lie under S, 28 of the Hindu Marriage Act
(hereinafter referred to as the Act). Reliance was placed by the counsel for the respondent on an earlier Division Bench decision of this court in
Mohan Rani V. Mohan Lal, A. I. R. 1965 J&K 88. The Division Bench which has made the reference to the Full Bench was of the opinion that
the Division Bench decision ( Supra ) required reconsideration in the light of later decision of other High Courts in India, and accordingly the point
that has been referred to us is as follows :
''Whether an order passed by the District Judge under S. 24 of the Act refusing alimony and litigation expenses and as a consequence thereof
closing the evidence of the appellant is appealable to the High Court.
(2) It appears that the respondent, P. K. Bagchi, the then Sr Superintendent of Post Offices Kashmir division, filed a suit praying for a decree for
judicial separation and custody of the minor child against the appellant Mrs. Shubra Bagchi before the District Judge Srinagar on various grounds.
When the suit proceeded to hearing the appellant made an application before the court for grant of temporary alimony and litigation expenses. The
court below by its order dated 18 372 ordered that Rs. 2000/ out of the amount deposited by the petitioner may be paid as alimony and Rs. 500/
as litigation expenses. This order was passed presumably on the as sumption that the application would be decided soon. Unfortunately more than
two and a half years have passed and the case has not yet come to a close. The appellant was asked to produce her evidence and she made an
application before the court below that since the proceedings had continued for a period of three years, a fresh amount of litigation expenses so as
to enable her to summon witnesses may be directed to be deposited by the respondent husband. No specific order was passed on this application
but by virtue of order dated 81073 the District Judge rejected the application that the litigation expenses had already been ordered to be deposited
and since the appellant had not produced her evidence, the court closed her evidence, This led to an appeal before the Division Bench which has
now referred the question formulated above to the Full Bench.
(3) In this case we are not concerned with the merits of the case of the parties which shall have to be gone into by the Division Bench after the
reference has been answered and the case is sent back. We have, however, to decide whether the present appeal is maintainable under S. 28 of
the Act or, in other words, whether or not an order passed under S. 24 or for that matter the order closing the evidence of the appellant is
appealable under S. 28 of the Act. As before the Division bench, so also before us, the learned counsel for the respondent has relied on a Division
Bench decision of this court in AIR 1965 JandK 88 (Supra) and has submitted that this decision lays down the correct law. On the other hand
counsel for the appellant has cited a large catena of authorities taking a contrary view and holding that an order under the Act, More particularly
under S. 24 is appealable Before dealing with the Division Bench decision whose correctness or validity we are called upon to decide, it may be
necessary to extract the section and the authorities on which the D. B decision was based.
S. 28 of the Act runs thus:
All decrees and orders made by the court in any proceeding under this, Act, shall be enforced in like manner as the decrees and orders of the
court made in the exercise of its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force.
Provided that there shall be no appeal on the subject of costs only.
(4) An analysis of this section 'would show that this provision runs into two parts : 1) that which deals with the enforceability of a decree or orders
passed under the Act : and 2 ) that which regulates appeals against decrees or orders passed in the proceedings under the Act. The proviso makes
a specific provision prohibiting any appeal on the subject of costs only. On an interpretation of this section, the Division Bench of this court in the
case (Supra) has held that the section itself did not confer any right of appeal, but it left it to the law concerned to govern the right, the forum and
the procedure of the appeal The Division Bench held that as decrees passed under the Act were clearly appealable, only those orders passed
under the Act could be appealable which fell within the ambit of O. 43 r. 1 of the Civil P. C. In this connection their Lordships observed as follows
:
Therefore the plain meaning of the words in S. 28 of the H M Act would be that from such decrees or orders as are appealable under the civil P.
C. under S. 104 and O 43 an appeal shall lie to the High Court. Other orders which do not satisfy the definition of a decree or are not enunciated
in S. 104 or O. 43 Civil P. C. cannot be made the subject matter of an appeal before the High Court but are revisable under the provisions of S.
115 of the CPC S. 28 of the H. M. Act presents no difficulty and we do not find that there is any scope for so much of conflict about its
interpretation.
If the interpretation put on this section by such authorities as AIR 1964 Orissa 122, AIR 1959 Cal. 455 or AIR 1961 Guj. 201 (Supra) is
accepted, it would lead to ridiculous result. According to these authorities every order passed in a proceeding under the H. M. Act would be
appealable. That would mean that every interim order would be appealed from. For instance, if a certain plaintiff is directed to deposit process fee
for a defendant he could go in appeal against that order. If a witness is not present on a certain hearing and a fresh summon is issued for that
witness, the order would be appealabe. If a counsel for a party wanted time for argument the order would be appealable. This could never be the
intention of the law and would reduce the working of the Act to a farce.
( See page 89 of the Reports )
(5) From the observations made by their Lordships it would appear that the learned Judges were swayed by the consideration that if S. 28 is held
to have conferred a right of appeal against all decrees and orders, then it would lead to absurd results and even interim orders regarding deposit of
process fee and summoning of witnesses would become appealable to the High Court which would lead to multiplicity of proceedings. I was also a
party to that judgment, but I think at that time we did not consider the question in all its aspects having regard to the scheme and the context of the
Act. It is well settled that where the language of the provisions of a statute is absolutely clear and unambiguous, it is not open to interpret it by
importing into it something which is not there or doing violence to the language of the section merely because certain anomalous results might follow
or because the interpretation may lead to complicated consequences In order to interpret the provisions of S. 28 it will be necessary to examine
the scheme and purport of the relevant provisions of the section which is necessary for a decision of the issues before us. It will be seen that the
various provisions of the section make a clear distinction between decrees and orders. It is obvious that a decision given on an application under
Ss. 9, 10. 12 and 13 would not amount to a decree as envisaged by the provisions of the Civil P. C. but by the statutory force of the Act the
decision becomes a decree which is appealable. Thus we find that in Ss. 9. 10, 12. 13, 15, 23 and 72 the statute conspicuously uses the word
'decree' in relation to an application for restitution of conjugal rights, judicial separation' divorce or a declaration of nullity of marriage. Vide the
words in S. 9 (1) of the Act 'may decree restitution of conjugal rights accordingly."" In S. 10 the words 'praying for a decree for judicial separation.'
In S. 12 the words may be annulled by a decree of nullify."" In S. 13 the words ""be dissolved by a decree of divorce."" In S 15 the words ""when a
marriage has been dissolved by a decree of divorce."" In S 23 (e) the words; the court shall grant such relief accordingly.' and in S 27 the words
'the court may make such provisions in the decree as it deems just and proper"" On the other band In Ss. 24, 25 and 26 of the Act which relate to
maintenance, alimony and custody of children the statute contemplates only orders and not decrees being passed. For instance in S. 24 the relevant
provision runs thus ""It may on the application of the wife or the husband, order the respondent to pay to the petitioner.' In S 25 the words run thus
: ""It may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just."" Similarly in S. 26 the
relevant provision is as follows: ''make from time, all such orders and provisions with respect to the custody, maintenance and education of such
children'' Thus it is manifest that the statute contemplates two kinds of proceeding? : 1 ) that culminate in a decree, and 2 ) that culminate in an
order which may be more or less of an interim or an interlocutory type, but at the same time S. 28 makes both the decrees and orders enforceable
and appealable. We are not concerned with the first part of S. 28 relating to the enforceability of appeals but with the second part of that section
which relates to appeals. The words 'may be appalled from under any law for the time being in force' clearly contemplate two things. First that the
statute confers the right of appeal against an order or decree in the proceedings under the Act but the forum and the procedure for the appeal is to
be determined by the concerned law, whether it is the Civil P. C. or any other law. In fact S. 28 has to be read with S. 21 of the Act which runs
thus :
Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act
shall be regulated, as far as may be, by the Civil P. C. 1908 ( Act 5 of 1908 ).
(6) S. 21 clearly provides that all proceedings under the Act shall be regulated in accordance with the Civil P. C unless there are provisions to the
contrary in the Act. So far as the right of appeal is concerned, S 28 contains a clear and specific provision which confers a right of appeal to the
aggrieved party against any order or decree in any proceeding under the Act. In these circumstances, therefore, in so far as the conferment of the
appellate power which is the creature of the statute is concerned, it is expressly provided for in the second part of S. 28. The forum of appeal, the
procedure and the manner in which an appeal is to be entertained or heard is left to the concerned law which means the Civil P. C. by force of S.
21 of the Act (Supra), In these circumstances we have no hesitation in holding that whatever be the complicated consequence of our interpretation
the language of the second part of S 28 is clear enough to indicate that a right of appeal is expressly conferred against the decrees and orders
mentioned therein and there is no justification for putting a narrower interpretation merely to avoid multiplicity of proceedings Our conclusion if
further reinforced by the existence of the proviso to S. 28 which clearly provides that there shall be no appeal on the subject of costs only. This
proviso therefore envisages the existence of the right of appeal which has been cubed by it. In other words if there is no right of appeal, the
question of placing any limitation on such a right would not arise and therefore the proviso would become redundant if we hold that the second part
of S. 28 does not contain or confer any right of appeal. Secondly the Act is a completely selfcontained statute and provides for a decree in certain
cases and orders in others. It is not reasonable to infer that being a completely selfcontained statute, it would leave the right of appeal to the mercy
of some other statute. Furthermore it seems to us that the act has revolutionised the ancient Hindu law and conferred new rights and liabilities on
Hindu spouses and the various orders and decrees passed in the proceedings under the Act are matters of moment and therefore it could not have
been the intention of the legislature to give a stamp of complete finality to the interim orders pissed under the Act, even though some of those
orders may touch the Civil rights of the parties, for instance the right to claim alimony, litigation expenses or even custody of the children, The
legislature was aware that a civil revision against an order of the District Judge was not maintainable in such cases and in its wisdom it thought that
the best thing was to make all decrees and orders appealable in accordance with the forum laid down by the Civil P. C Thus it seems to us that the
intention was to equate decrees with interim orders so far as the matter of appeals or for that matter their enforceability was concerned. We are
fortified in our view by a large catena of decisions to which we shall now refer.
(7) In Harilal V. Lilatati, AIR 1961 Gujarat 202, 204 a Division Bench of the Gujarat High Court observed as follows :
The right of appeal is a statutory right. In order that a party may have a right of appeal, that right has to be conferred by legislation. If the words
used in S. 28 'may be appealed from under any law for the time being in force "" mean that an appeal would only lie in those cases where some
other law lays down that such appeal can be preferred, then the result would be that we would have to look to the provisions of the Civil P. C. in
order to consider whether any appeal is provided under the Code in respect of decrees and orders passed under the H. M. Act, 1955. No other
law is pointed out which confers any right of appeal.
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The orders passed under Ss, 24,25 and 26 of the Act are not orders falling within S. 104 and 0.43 R. 1 of the Civil P. C. If this interpretation is
accepted, the result would be that there would not be any decree or any order under any of the aforesaid sections which would be appealable.
This could not possibly be the intention of the legislature. The section is intended to deal inter alia with the subject of appeals from decrees and
orders passed under the Act. If there was no law under which an appeal would lie from any decree or order passed under the Act, the provisions
in that connection would be futile and devoid of meaning. By this Act the legislature has conferred special rights and has provided special
remedies.
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It seems to us that the legislature intended to confer a right of appeal by the provisions of S. 28 itself by using the words 'All decrees any orders
made by the Act in and proceeding under this Act.........may be appealed from......"" and that the intention of the legislature was not to refer parties
to any other enactment for the purpose of ascertaining whether the decrees or orders passed under the Act were appealable or not. Having regard
to the language used by the legislature which, we are painfully conscious is not very apt; some meaning has to be given to the words 'under any law
for the time being in force.' Those words, on a true construction of the Act, are intended to provide for the forum before which the appeal is to be
preferred. They may well relate to the procedure in connection with the appeals which may be filed under S. 28
(8) This view was reiterated in another Division Bench of the same High Court in Umiyabhen v. Ambalal, AIR 1966 Gujrat 139, 144145 wherein
their Lordships observed as follows :
If the words 'decrees and orders made by the court' include not only original decrees and orders but also appellate decrees and orders, it is clear
that the provision enacted in the second part of S. 23 makes such decrees and orders appealable. It has already been held by this court in AIR
1961 Guj. 202 that S. 28 itself confers a right of appeal by using the words ' may be appealed from' and a right of appeal against an appellate
decree or order made by the court in any proceeding under the Act is therefore clearly provided by the section.
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The section undoubtedly confers a right of appeal by using the words 'maybe appealed from' but that right of appeal is to be exercised 'under any
law for the time being in force.' The procedure for filing the appeal and the jurisdiction and powers of the court in dealing with the appeal are
governed by the law for the time being in force which would include inter alia the Civil P. C.
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We may amplify this statement by saying that these words provide not only the procedure for filing the appeal and the forum in which the appeal
must be filed but also the jurisdiction and power of the court in dealing with the appeal so filed. The right of appeal is conferred by the section but
the nature and extent of the right of appeal which demand on the procedure, jurisdiction and power of the court in dealing with the appeal ate
governed by the law for the time being in force which includes inter alia the code.
(9) A similar view was taken by a Division Bench of the Allahabad High Court in Sarla Devi v. Balwant Singh, AIR 1969 All. 601, 602 where in
the following observations were made :
A right of appeal is a substantive right and is not a mere matter of procedure. The use of the words' shall be regulated as far as may be, by the
Civil P. C. 1908' in S. 21 of the Act clearly indicate that it is the procedure only which is to be regulated by the Civil P C. S. 28 of the Act confers
an unqualified right of appeal. The words used 'and may be appealed from' in S. 28 of the Act clearly give a person aggrieved the right to file an
appeal. In our opinion, therefore, an order passed under S. 24 of the Act is appealable at the instance of a party aggrieved.
(10) The MP High Court in Rukhamanibai V. Krishanlal, AIR 1959 MP 187 observed as follows :
S. 28 of the Act has been enacted with the intention of giving a right of appeal. If the right of appeal is to be inferred from the provisions of any
other law, the section so far as it relates to appeal would be meaningless and the words underlined would be superfluous. It cannot be accepted
that a right of appeal from orders which are passed under specific provisions of the Act should be provided for in any other law.
In this case Shrivasfava J. held that S. 28 clearly conferred a substantive right of appeal against an order passed under S. 24 of the Act.
(11) To the same effect is a Division Bench decision of the Calcutta High court in Smt. Sobhana v. Amar Kanta, AIR 1959 Cal 455, 457 wherein
their Lordships observed as follows :
On consideration of all these, I have come to the conclusion that the intention of the legislature in a proceeding under the act shall be appealable
and that the words 'under any law for the time being in force' were added to indicate that the forum where the appeal would lie, viz, to the D. J. or
to the High Court, and such other matters as regards procedure for the hearing of the appeal would be decided by the law on the subject for the
time being in force.
(12) There are two Full Bench decisions which have also affirmed the view that orders passed under S. 24 are appealable under S. 28 which
confers a right of appeal.
(13) In Kumtumba Rao v. Sesharatamamba, AIR 1967 A. P. 323, 331 their Lordships of the Full Bench pointed cut as follows :
Be that what it may, it is clear from our discussion that the expression 'under any law for the time being in force, must be referable not to the
substantive right of appeal which is conferred by S. 28 itself in relation to all decrees and orders specified as such in the relevant provisions of the
Act ; viz, Ss 9 to 13 and Ss. 24 to 27, but to the procedure, forum and other relevant matters for the enforcement of the right of appeal.*. ""It is this
interpretation which ought to be preferred to the other interpretation sought to be put as it removes absurdity, repugnancy and inconsistency which
the other interpretation gives rise to and further gives effect to the intention of the legislature apparent from the statute without straining or doing
violence to the language used and by putting that construction as the words employed admit of.
X X X X
we are of the view that S 28 by itself gives the right of appeal and the enforcement thereof is made subject to the laws in force relevant thereto.
That is what is contemplated by the second part of S. 28 of the Act.
(14) Similarly in Paras Ram v. Janki Bhai, AIR 1961 All. 395, 396, the Full Bench observed as follows :
S. 28 lays down that an order made by the court in any proceeding under the Act 'may be appealed from under any law for the time being in
force/"" The court of a Civil Judge in the state is created under the Bengal, Assam and Agra Civil courts Act 1887. S, 21 of the Act lays down that
an appeal from an order of a civil judge shall lie to (a) the District Judge where the value of the original suit in which the order was made does not
exceed ten thousand rupees and (b) the High Court in any other case.
(15) It is true that in this case the point was not fully discussed, but the clear and unequivocal view expressed by the Full Bench no doubt fortifies,
the view that we have taken in this case.
(16) There is another Division Bench decision of the Bombay High Court in MT Ghisad v. Malti, AIR 1973 Bom. 141 which has taken the same
view after overruling its previous decision in Prithviraj Singhji Vs. Bai Shivprabhakumari, AIR 1960 Bom 315 which was relied upon by the
Division Bench decision of this court in AIR 1965 J&K 88 (Supra) In this connection their Lordships of the Bombay High Court observed as
follows:
We have heard the counsel for the parties at considerable length and on a proper construction of provisions of S. 28 of the Act we are inclined to
take the view that the right of appeal against a decree or an order made in a proceeding under the Act is given by the provisions of S 28 itself.
X X X X
In our view a right of appeal against decrees and orders passed under this Act is given by the provisions of S. 28 itself. There has to be some law
to which one can look for the purpose of deciding the forum where an appeal can be filed, The Civi! P. C. does not provide forum though it may
provide for the procedure to be adopted while deciding the appeal
X X X X
It also appears to us that the legislature having given a right of appeal in S. 28 it also provided in the latter part of that section for the procedure for
filing the appeal and the forum for the appeal as also the jurisdiction and power of the court in dealing with the appeal filed, by enacting the latter
part of S. 28 using the words 'under any law for the time being in force.'
X X X X
Since S. 28 is a self contained provision regarding the right of appeal the forum for and the procedure applicable to such an appeal, we are not
inclined to agree with the. observation made in Prirhvirajsinghji's case, AIR I960 Bom. 315 that having made a reference in S. 21 of the Act to the
Civil P. C accepting the argument of the opponents counsel in that case, would mean that the procedure governing the appeal would be that under
the Civil P. C which the legislature did not intend to do.''
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We may also usefully refer to the provisions of the proviso to S. 28. The proviso provides that no appeal shall lie on the subject of costs only. It is
now well settled that a proviso deals with a topic which would, but for the proviso have fallen into the main provisions of the section. The proviso
to S. 28 also indicates that the legislature intended to carve out certain orders in respect of which no right of appeal was given. If the effect of the
proviso is that no right of appeal was to be given in respect of the subject of costs, then construing the proviso and the main section together it must
be held that if the proviso was not there a right of appeal could be exercised even in respect of an order with regard to costs. This could only be
done if the substantive provision in S. 28 itself gave a right of appeal.
In enacting the proviso to S 28 the intention of the legislature was chat an order with regard to costs was not to be the subject matter of an
appeal. The proviso also, therefore, indicates to us that S 28 gives a substantive right of appeal in respect of decrees or orders passed under the
Act.''
(See pp 143146 of the Reports)
(17) A Division Bench of the Patna High Court was also of the same view in Suresh Prasad v. Manorama Debi, AIR 1973 Patna 321, 325
wherein their Lordships observed as follows :
Having regard to the discussion made above; I am of the opinion that all decrees and orders passed in a proceeding under the H. M Act are
appealable by virtue of the provisions of S. 28 itself. The words 'may be appealed from under any law for the time being in force' have to be
understood as meaning that although the right of appeal is derived from this section itself, so far as the procedural aspect of the appeal is
concerned, it will be governed by the Civil P. C. 1908* and the Rules prescribed for maters relating to the Act by the respective High Court in this
case the Civil court Rules of the High Court of Judicature of Patna (Civil). Since an appeal lies against the impugned order, the petition in revision is
not maintainable. It has therefore to be dismissed.
(18) In paragraph 14 however the DB observed as follows :.
I may, in passing, observe that the appealable orders are only those which have been made by a court in any proceeding under the Act and not all
orders having connection with any proceeding under the Act. In other words, only such orders are appealable which have been passed under Ss.
24 to 27 of the Act.
(19) We, however, find ourselves unable to agree with the view expressed by their Lordships in para 14 of the judgment. (Supra) The distinction
made by their Lordships between orders passed in any proceeding under the Act and orders having connection with any proceeding under the Act
appears to be, with due respect, a distinction without any difference. An order passed under the provisions of the Act, whether under Ss. 24, 25
or 26 would undoubtedly be an order in the proceeding under the Act and therefore the said distinction made by their Lordships appears to be
purely artificial and illusory. Furthermore, the interpretation is not born out by the clear language of S 28 which does not distinguish the kind of
orders passed under the Act and makes all kinds of orders passed under the Act appealable. With due deference, therefore, we express our
respectful dissent from the view expressed by their Lordships in para 14 (Supra). On the other point, however, the decision fully supports our view
that an appeal against an order under S. 24 lies under S. 28 of the Act.
(20) There are some other decisions of other High Courts also which have taken the same view.
(21) In Snehlata v. Jagdish Dansana, AIR 1964 Orissa 122, 123 G. K. Misra J (as he then was) observed as follows :
''The legislature was quite aware of the position that there is no other law for the time being in force under which an appeal can lie from any order
in any proceeding under the Act. If no appeal is provided under S. 28. there would be no meaning in saying in the proviso that no appeal lies
against costs only. In that case the language used should have been that no appeal lies against any order in any proceeding under the Act. The right
of appeal is a substantive right which is always a creature of the statute and is not a mere matter of procedure, G. Veeryaa V. N. Subhash
Chowdhy, AIR 1957 SC 540. The proper construction is that the expression 'may be appealed from' coffers substantive right of appeal against all
decrees and orders made by the court in any proceeding under the Act. This substantive right is created by the Act under S. 28 The expression
'under any law for the time being in force' refers to the forum and the procedure to be followed under any other law for the time being in force
which includes Civil P. C. and the Rules framed by the High Court.
(22) To the same effect is a decision of the Punjab High Court in Tarlochan Singh v. Mohinder Kaur, AIR 1961 Punjab 508, 509 wherein
Mahajan J. observed as follows ;
I am inclined to follow the view of the Calcutta and the Madhya Pradesh High Courts in preference to the view propounded by the Andhra
Pradesh High Court.
If I accept the view of the Andhra Pradesh High Court, the provision of appeal in S. 28 of the Act becomes wholly meaningless, for no appeal
against an order would be competent and this will lead to far reaching consequences. The language of the section is somewhat defective, but the
intention seems to be clear that an appeal against the orders under the Act was sought to be provided for, I would, therefore, repel the preliminary
objection.
(23) The Madras High Court has taken the same view in Valliammal v. Periswami, AIR 1959 Madras 510. To the same effect is a decision of the
Rajasthan High Court in Govind Ram v. Lila Devi, AIR 1959 Rajasthan 253, 254 wherein Jagit Narayan J. has observed :
''The difficulty arises in the case of orders made under the Act under Ss. 24, 25 and 26. S 24 provides for the grant of maintenance pendentelite
and expenses of proceedings, S 25 for grant of permanent alimony and maintenance and S. 25 for the custody of children. It seems to me that the
legislature intended that orders under these sections should be appealable although the language of the section is undoubtedly not happy.
(24) The Judicial Commr. of Himachal Pradesh also took the same view in AIR 1965 H. P. 12.
(25) The view taken by a single judge of the Madras High Court in AIR 1959 Mad. 51.0 (Supra) was reiterated by a D. B in D. S. Seshadari v.
Jayalakshi, AIR 1953 Madras 283, 255 wherein their Lordships observed as follows :
In our opinion S. 28 in terms confers a right of appeal against all decrees and orders passed by the court in any proceeding under the Act.
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The learned judges held that the words 'under any law for the time being in force' in S. 28 of the Act were intended to provide for the forum of
appeal and that they did not qualify or restrict the right of appeal given under the statute. A different note has however been struck by Gohkhala J.
in Prithviraj Singh ji v. Bai Shivprabha Kumari, AIR 1960 Bom. 315, who was inclined to interpret the words 'any law for the time being in force'
In S. 28 as regulating the appealability of decrees and orders passed under the Act. In our opinion the view taken in A. I. R. 1959 Cal. 455 is
consistent with the principles as stated above and we accept the same.
(26) It would thus appear that the High Courts, of Calcutta, Bombay, Madras. Allahabad, Rajasthan, Gujarat, Orissa Patna, Punjab, Andhra
Pradesh and Madhya Pradesh have taken the view that an order under S. 24 is appealable under S 28 In other words this appears to be the
general consensus of judicial opinion on this point.
(27) The Division Bench of this court in AIR 1965 J&K 83 (Supra) relied on AIR 1960 Bom. 315 and AIR 1962 Cal. 455 There is, however, a
decision of the Mysore High Court in AIR 1962 My sore 172 which supports the view taken by the aforesaid Division Bench decision of this
court. So far as AIR 1960 Andh. Pra 30 is concerned it was specifically overruled by a Full Bench of the Andhra Pradesh High Court in AIR
1967 AP 323 (Supra) which also dissented from the view taken in AIR 1960 Bom. 315 (Supra) and the Division Bench decision of our own High
Court. So far as A. I. R. 1960 Bom. 315 is concerned it was also specifically overruled by a latter Division Bench decision of the Bombay High
Court in AIR 1973 Bom. 14l (SUPRA). Thus the Bombay case on which the Division Bench of this court relied is no longer good law.
(28) As regards AIR 1962 Cal 455 it is undoubtedly a single Bench decision bur it is contrary to the earlier Division Bench decision of the same
High Court in AIR 1959 Cal 455. The My sore High Court is therefore the solitary court which has consistently held the view that no appeal
would lie against an interim order passed under the act.
(29) For the reasons that we have given above and in view of the general preponderance of the authorities in favour of the view than an appeal
against an order under S, 24 lies under S. 28 we express our respectful dissent from the view taken by a single judge of the Mysore High Court.
(30) On a careful consideration, therefore, of the plain language employed in S. 28 of the Act and the authorities of almost all the High Courts
interpreting S. 28 as conferring a right of appeal, the conclusion is irresistible that an order passed by the District Judge in the instant case refusing
litigation expenses and alimony to the appellant was clearly appealable to the High Court and therefore the preliminary objection taken by the
counsel for the respondent that the appeal is not maintainable is completely devoid of force, Consequently we hold that the Division Bench decision
of this court in AIR 1962 J&K 88 (Supra) was not correctly decided and is hereby overruled. We, therefore, answer the reference in the
affirmative and hold that the present appeal is maintainable. The appeal will now go back to the Division Bench which had made the reference to
the Full Bench for decision on merits.
IS. M. F. Ah Sd/ Chief Justice
I have had the advantage of going through the elaborate judgment prepared by the Hon'ble Chief Justice and find myself in complete agreement
with the views expressed by his Lordship after an exhaustive review of the authorities bearing on the matter.