Jineev vs Sherly Mathew

Thottathil B. Radhakrishnan, J.—These appeals arise from a common order of a Family Court allowing two claim petitions. The Registry stood by the order issued by this Court in Sabu Eranackal Vs. Niggy Sabu, and raised the objection that these appeals are not to be registered as Execution First Appeals, but only as Matrimonial Appeals. This objection was contested on behalf of the Appellant. We heard the learned Counsel for the parties and Adv. M.S. Narayanan as Amicus Curiae.

When a claim petition is decided, that order is deemed to be a decree in terms of Order XXI Rule 58(4) of the Code of Civil Procedure. Therefore, it becomes appealable u/s 96 of CPC This principle is well settled and also stands with the support of the Bench decision of this Court in Anto Mamkoottam v. Peruvanthanam Service Co-operative Bank 1996 (2) KLT 962. That view applies to proceedings in the Civil Court.

It is beyond dispute that the order appealed against is a final order of the Family Court. When it comes to the Family Court, Section 19(1) of the Family Courts Act provides for appeal against every judgment or order, not being an interlocutory order, of the Family Court. That provision opens with a non-obstante clause. Therefore, Section 19(l) of the Family Courts Act advises to hold that the provisions therein will have overriding effect on the provision for appeal, as is contained in Section 96 of the CPC This is all the more so because the Family Courts Act is a special enactment and the intention of Section 19 is to override the other provisions which would have otherwise governed the situation. Sub-section (5) of Section 19 of the Family Courts Act specifically contains the statutory interdiction to the effect that except as provided in Section 19, no appeal or revision shall lie to any court from any judgment order or decree of a Family Court. All such appeals are to be heard by a Bench consisting of two or more Judges in terms of Sub-section (6) thereof. Hence, all final orders, judgments and decrees of the Family Courts are appealable u/s 19(1) of the Family Courts Act to the exclusion of any appeal or revision under any other law, including any provision for appeal in the Code of Civil Procedure.

The deeming provision in Section 18 of the Family Courts Act does not, in any manner, guide the appellate jurisdiction. Thatprovisionisrelevant only for the purpose of execution. Therefore, even if the order is to be taken as a decree for the purpose of execution, it will continue to be one appealable only u/s 19(1) of the Family Courts Act.

With the aforesaid, we sustain the objection of the Registry and order that these appeal be re-numbered as Mat. Appeals.