B.N. Sapru, J.@mdashIn this appeal by Smt. Zena Erasmus, her husband Ivan Erasmus was served and has put in appearance at the admission stage. The husband Ivan Erasmus had instituted a suit for divorce against his wife Smt. Zena Erasmus on the ground of cruelty and desertion. In the alternative, he had prayed for a decree of judicial separation. In the suit, an issue was framed as to the maintainability of the petition of divorce. The court found that in view of the provisions of Section 11 of the Indian Divorce Act, no relief of divorce could be given to the husband and held that the suit in so far as the decree for divorce was sought was bad. However, the court allowed the husband to continue with the suit in respect of the relief for judicial separation. After that decision of the court dated 5-2-1983, the wife made an application 86-C praying that the order dated 5-2-1983 be modified and the suit be dismissed in its entirety. This application filed by the wife has been dismissed by the Addl. District Judge Allahabad, on 18-2-1984, as he directed to proceed with the case for final hearing.
2. The Petitioner has preferred an appeal against this order dated 18-2-1984.
3. Learned Counsel for the Respondent has raised a preliminary objection and contended that a F.A.F.O. does not lie u/s 55 of the Indian Divorce Act and as such he prayed that the appeal be dismissed as not maintainable.
4. The argument of the learned Counsel for the Respondent husband is that the application made by the Appellant No. 86-C was an application for review and it has been dismissed and consequently it is not appealable in view of the provisions of Order 47 Rule 7 of the Code of Civil Procedure, which provides that an order rejecting an application for review shall not be appealable. He then points out that under Order 43 Rule 1 only an order granting an application for review is appealable.
5. Section 55 of the Indian Divorce Act provides that "all decrees and orders made by the court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the 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 the laws, rules and order for the time being in force".
6. An appeal must necessarily be created by statute and unless statute authorised an appeal, no order will lie. If an order made in a normal civil proceedings will be appealable then a similar order made in a petition under the Indian Divorce Act would be appealable and the reverse of it is that if an order, when made by a subordinate court in normal civil proceedings, the same shall not be appealable even in proceedings under the Indian Divorce Act.
7. Learned Counsel for the Appellant has contended that either her application 86-C was either under Order 47 for review or it was an application u/s 151 CPC or there is a further category of applications which may cover her case and that is an application for justice.
8. If the application 86-C is treated as an application under Order 47, the order of the court below is not appealable; if the application is treated u/s 151 Code of Civil Procedure, the order of the court below will again be non-appealable. If the application falls under the category of what Miss Rehman, learned Counsel for the Appellant describes as an application for justice, then again it shall not be appealable. Miss N.A. Rehman is unable to show as to under which section the order of the court below is appealable.
9. Learned Counsel for the Appellant has, however, drawn my attention to the case of Phillips v. Phillips ILR Cal. 613 in which it has been held that Section 45 of the Indian Divorce Act only regulated procedure. There can be no quarrel with this proposal. I do not see how this case supports the argument of Miss N.A. Rehman. The next case relied upon by the learned Counsel is Bailey v. Bailey ILR Cal. 490 in which it has been held that in a wife''s suit for divorce against the husband on the ground of incestuous adultery, the court has no power under the Indian Divorce Act to allow the alleged adulteress to intervene. It has further held that the words, "all proceedings under the Act between party and party" in Section 45 of the Indian Divorce Act applied only to proceedings after the parties to the suit have been determined, and the parties to the suit can only be determined in accordance with the provisions of the Act. This case is again of no assistance to the learned Counsel. The third case relied upon by the learned Counsel is Robert Cameron Chamarette v. Mrs. Phyllis Ethel Chamarette AIR 1937 Lah 176 in which case an objection was taken to the maintainability of the appeal u/s 55 of the Indian Divorce Act. In the case before the Lahore High Court, the husband had been permitted to lead evidence to show that two children born during the subsistence of the marriage between husband and wife were not legitimate. Thereafter the court passed an order holding that the evidence led by the husband was inadmissible. The husband had preferred an appeal against the order holding that the evidence produced was inadmissible. In the appeal an objection was taken to the maintainability of the appeal. The court observed: "Two preliminary objections are raised on behalf of the Respondent. The first is that no appeal lies. But Section 55 of the Divorce Act is clear on this question. It provides that all decrees and orders made by the court in any suit or proceeding under the Act shall be enforced and may be appealed from in the like manner as the decree and orders of the court made in the exercise of its original Civil jurisdiction. There may be some orders of a formal character against which an appeal would not lie, but this is an order which was passed by the court after hearing the arguments of the parties, and I am inclined to think that this appeal is competent." If the learned Judge means that merely because arguments were advanced at a certain stage, every order passed will be appealable, then, with great respect, I am unable to agree with the learned Judge. In any case, an appeal will not lie unless it is shown that it is provided for by some express provisions of law.
10. After hearing learned Counsel for the parties I am satisfied that appeal is not maintainable.
11. Learned Counsel for the Appellant then urged that this application be treated as a revision. I find no such error in the impugned order which would have justified interference u/s 115 of the Code of Civil Procedure.
12. The F.A.F.O. is accordingly dismissed. However, as the appeal is being dismissed at the admission stage, there will be no order as to costs. The record shall be sent back forthwith.
