JUDGMENT S.R. Singh, J.
1. Constant marital bickering and consequent stand-off between the petitioner and the respondent appears to be the causative factors for institution of a petition by the petitioner under Section 13 of the Hindu Marriage Act, 1995, seeking dissolution of the marriage on the ground of ' wilful neglect' and 'desertion' by the wife-respondent herein. The learned Judge. Family Court, passed an order on 29.9.1997 that the case would proceed ex parte against the defendant. Thereafter, on the basis of ex parte evidence, the matter escalated into a decree passed for dissolution of marriage vide judgment dated 16.10.1997, reinforced with the finding that 'desertion and wilful neglect on the part ofSmt. Rekha Cupta is proved." 'On coming to know of the ex parte judgment, the respondent-wife moved an application with the prayer to set aside the order dated 29.9.1997 and the judgment and decree dated 16.10.1997. The reason for non-appearance on material dates was that she was residing with her father at Pathankot and owing to her own ailments.
she could not attend the Court as a result of which the case proceeded ex parte against her and ultimately, the matter culminated in ex parte decree on the basis of ex parte evidence adduced by the husband. It is also alleged that she was stymied in appearing on the dates fixed in the case through a lawyer in that the lawyers are not permitted to prosecute the cases in Family Courts. The learned Judge Family Court, deduced the cause for default and absence on the relevant dates to be 'sufficient' and resultantly, set aside the order dated 29.9.1997 and the ex parte judgment and decree dated 16.10.1997 by means of the order dated 25.4.1998. Despaired of the order, the petitioner-husband has filed the instant petition for quashing the order dated 25.4.1998.
2. Sri A. D. Prabhakar, learned counsel appearing for the respondent, to begin with, raised a preliminary objection as to the maintainability of the writ petition on the ground that the petitioner had an alternative remedy of appeal under Section 19 of the Family Courts Act, 1984, Sri K. K. Arora, appearing for the petitioner, tried to meet and controvert the preliminary based on the submissions that the order impugned herein has the complexion of an 'interlocutory order' and therefore, no appeal lies against it. The learned counsel canvassed that as provided in sub-section (1), appeal lies against "every judgment or order, not being an interlocutory order, of the Family Court". Dwelling on his submission, the learned counsel urged that an order allowing application under Order IX, Rule 13. C.P.C. partakes of the nature of an 'interlocutory order' in that the suit stands revived. Sri Arora made a further submission that an appeal under Order XL1I1. Rule 1, C.P.C. lies against an order rejecting an application for setting aside an ex parte decree and not against an order allowing the application under Order IX, Rule 13, C.P.C.
3. I have scanned the submissions made at the bar, for its substance. Section 19 of the Family Courts Act, 1984, in so far as it is germane to the controversy involved in this petition, is excerpted below :
"19. Appeal. --(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure. 1908 (5 of 1908) or in the Code of Criminal Procedure. 1973 (2 of 1974), or in any other law, an appeal shall lie from every Judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties (or from an order passed under Chapter IX of the Code of Criminal Procedure. 1973 (2 of 1974) :
Provided that nothing in this section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991.
(3) * * * * (4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure. 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.
(3) * * * * *
4. Expression 'interlocutory order' occurring in Section 397(2) of the Coae of Criminal Procedure, 1973 came up for consideration