Family Court order setting aside ex-parte judgment is appealable: Orissa HC [Read Judgment]

An application to set aside an ex-parte decree is an ‘interlocutory judgment’, which finally determines the right of the parties in the said proceeding, the Bench observed.

The Orissa High Court in Gyanasis Jena vs. Rekha Swain, has held that a family court order allowing an application to set aside an ex-parte judgment is appealable under Section 19 of the Family Courts Act, 1984.

A Division Bench comprising Justice BK Nayak and Justice KR Mohapatra made this observation while considering the submission by the respondent, who disputed the maintainability of the appeal by relying on the Supreme Court decision in Bhulan Rout and another Vs. Lalbahadur Yadav, (2004) 13 SCC 679, wherein it was observed that no appeal is expressly provided under Order 43 of CPC against order allowing an application under Order 9 Rule 13, CPC.

Section 19 of the Family Courts Act states that, except from an interlocutory order or an order or a decree passed on consent of the parties and order passed under Chapter-IX of the Code of Criminal Procedure, 1973, an appeal shall lie from every judgment or order of a family court to the high court both on facts and law.

The question before the Bench was whether an order allowing an application to set aside an ex-parte judgment is an interlocutory order or an interlocutory judgment. The Bench referring to the Supreme Court decision in Shah Babulal Khimji Vs. Jayaben D.Kania and another, AIR 1981 SC 1786, held that an order allowing an application to set aside an ex-parte decree is an ‘interlocutory judgment’, which finally determines the right of the parties in the said proceeding.

The court also held: “Section 19(1) of the Act, 1984, overrides the provisions of ‘Appeal’ either under Section 96 or under Section 104 read with relevant Rules, as provided under the Code of Civil Procedure, 1908, and therefore, Section 10 has no applicability in preferring an appeal under Section 19(1) of the Act, 1984”.

Read the Judgment here.