Hon'ble Arvind Kumar Tripathi (II),J.
The present appeal has been filed under Section 19 of the Family Court Act 1984 against the order dated 26th September,2011 in Execution Case No. 13 of 2009 (Smt. Sushila Goel Vs. Krishna Mohan Goel and another). The court below by the order under appeal has rejected the objections purporting to have been filed under Section 47 of CPC., by the appellants herein.
The background facts may be noticed in brief. The decree holder Smt. Sushila Goel obtained a decree of divorce from the court of Civil Judge (Senior Division), Etawah as also decree for payment of maintenance, in Case No.1133/1988 decided on 23rd January, 2008. Under the said decree, it has been provided that Smt. Sushila Goel, decree holder is entitled to get a sum of Rs.10,00000/- as permanent alimony. She filed the Execution Case No. 14 of 2008 at Etawah. The said decree has been transferred to district Meerut and ultimately it reached to Family Court, Meerut. Before the transferee court, the present appellants, namely, Prem Jyoti and others filed objections under Section 47 CPC claiming that after the passing of the decree, the judgment debtor has executed three sale deeds dated 3rd May, 2008, 5th May,2008 and 12th May, 2008 in her favour. She also claims that she is legally wedded wife of the deceased judgment debtor. The court below by the order under appeal has dismissed the objections on the ground that the sale deeds are fictitious transactions. The sale deeds have been executed after passing of the decree with intention to avoid the payment of the decreetal amount.
When the appeal was taken up, a preliminary objection with regard to its maintainability was raised by the learned counsel for the respondent decree holder. He submits that the appeal under Section 19 of the Family Court is not maintainable as it arises out of execution proceedings relating to execution of a decree passed by the civil court.
In reply Sri V.M. Zaidi, learned Senior Counsel for the appellant submits that the decree has been transferred to the Family Court and every order and judgment passed by family court, except an interlocutory order, is appealable under Section 19 of the family court. Elaborating the argument, it was submitted that decree has been transferred to Meerut in exercise of power under Section 42 of the CPC.
We have considered the respective submissions of the learned counsel for the parties and perused the record. It could not be disputed by the learned counsel for the appellant that the order has been passed on execution side of the civil court decree. Section 18 of the Family Court Act provides for the execution of decrees and orders passed by a Family Court. It has been provided that a decree passed by the Family Court shall have the same force and affect as a decree or order of the civil court and shall be executed in the same manner as is prescribed by the Civil Procedure Code for the execution of decrees and orders. It follows that even a decree passed by the family court is liable to be executed as a decree of civil court and the provisions relating to the execution of decrees and orders of civil court would apply.
Section 42 of Civil Procedure Code deals with the powers of the court in executing transferred decree. The transferee Court shall have the same powers in respect of transferred decree as if it had been passed by itself.
Section 42 of Civil Procedure Code has been amended by U.P. Civil Laws (Reforms and Amendment Act) in the State of U.P. In Section 42 for the expression "as the court which pass it" substituted in place of "as if it had been passed by itself". The effect of the said amendment was considered by the Apex Court in the case of Mahadeo Prasad Singh and another Vs. Ram Lochan and others (1980) 4 SCC 354. It has been held that the effect of such substitution was that the powers of the transferee Court in executing the transferred decree became co-terminus with the powers of the court which had passed it.
In the case on hand, the decree has been passed by civil court and in any view of the matter particularly Section 18 of the Family Court, such decree is liable to be executed as a decree of civil court. It may be placed on record that even family court has a power of civil court. Merely because a civil court decree for the purposes of execution has been transferred to a court having family court jurisdiction will not in any manner convert the decree as if passed by family court or similarly, any order passed on the execution side by a family court shall not be treated as an order passed by family court within the meaning of Section 19 of the Family Court Act.
The Family Courts Act 1984 has been enacted to provide for the establishment of family courts with a view to promote cancellation in, and secure speeding settlement of disputes relating to marriage and family affairs and for matters connected therewith. Section-7 of the Act deals with the jurisdiction of family court. Family Court shall be deemed for the purposes of exercising jurisdiction to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the family courts extends. Explanation to sub section one delineates the various suits and proceedings regarding which a family court has jurisdiction. A family court is also a civil court and when it exercises jurisdiction other than the jurisdiction as mentioned in Section-7 of the Family Court Act, the order passed in such other suits or proceedings will not be amendable to appeal under Section 19 of the Family Courts Act. Only such orders which are passed by the court exercising the jurisdiction as enumerated in Section-7 will be subject matter of appeal under Section 19 of the Family Court Act.
We have taken similar view in First Appeal No. 46 of 2007 (Rajiv Madan Vs. Smt. Achala Madan) decided on 30.7.2012. The relevant paragraph is quoted below:
We have given careful consideration to the above submission of the learned counsel for the appellant but it is difficult to agree with him. Indisputably, the order under appeal has been passed on the execution side by civil court. Even if a decree or order is passed by the Family Court for the purposes of execution, the remedy under section 19 of the Family Court shall not be available and the only remedy to an aggrieved party will be to challenge the order passed by the executing court in the same manner as is prescribed by the Code of Civil Court while executing a decree.
In view of the above, we are of the opinion that the present appeal is not maintainable. It is dismissed accordingly.
At the end, learned counsel for the appellant submits that the appellant may be permitted to convert the appeal into revision. We provide that the appellant may seek appropriate remedy before the appropriate forum and seek condonation of delay.
The office is directed to return the certified copies of the judgment and order of the court below within a week.
Order Date :- 8.8.2012 Meenu