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Vinu (executive)     30 August 2012

How can avoid depositing 50% when going for interim-appeal?

hi all,

1.Can one avoid depositing 50% of interim-maintenance when going for appeal (praying for squash) against Dv ex-parte order?

2.If No..when it should be paid ? Which mode of payment?

3.If yes..kindly clarfiy  the consequences....?

 



Learning

 2 Replies

Biswajit Kumar Patra (Advocate)     31 August 2012

 

Dear Vinu,

First of all please tell me the provision under which one has to deposit 50% of the interim maintenance granted.

Further it is to inform you that generally no court entertains an appeal against the interim exparte orders passed under section 23. For this kindly go through the following judgment:

Mr.Abhijit Bhikaseth Auti vs State Of Maharashtra & Anr on 16 September, 2008 (Bomabay High Court)

Bench: A.S. Oka

“21. In view of what is held by the Apex Court, while the Court of Sessions deals with an appeal from an order made under section 23, the Court of Sessions will be governed by the aforesaid constraints. Thus, the scope of appeal against an order under section 23 will be limited. While dealing with an appeal against an ex-parte ad-interim order, the Sessions Court will be very slow in interfering with such orders unless the orders are perverse or patently illegal. However, the scope of an appeal against a final order on application under section 12(1) of the said Act will not be governed by the aforesaid constraints.

25. Thus, the conclusions which can be summarised are as under:

(iii) An appeal will also lie against orders passed under sub section 1 and sub section 2 of the section 23 of the said Act which are passed by the learned Magistrate. However, while dealing with an appeal against the order passed under section 23 of the said Act, the Appellate Court will usually not interfere with the exercise of discretion by the learned Magistrate. The appellate Court will interfere only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the Court has ignored settled principles of law regulating grant or refusal of interim relief.

(iv) An appeal under section 29 will not be maintainable against purely procedural orders which do not decide or determine the rights and liabilities of the parties.”

Tajobsindia (Senior Partner )     31 August 2012

@ Biswajit


I disagree to your Mumbai HC reference and say interim orders that can be passed under S. 23 read with S. 18 to 22 would affect the rights of parties substantially and provisions for appeal under S. 29 will be available against such orders also. Here the queriest is stressing that an ex party Order was passed and maint has to be paid and further saying he wants to appeal against ex party Order.


Hence here I'm placing just one reference of another HC for your review "that interim orders passed under S. 23 under The Act, 2005 are appelable under S. 29 of The Act, 2005”.
 
Kerala High Court - Sulochana And Anr. vs Kuttappan And Ors.
[2007 CriLJ 2057]


@ Author,

1. Colly. suggestion to your three questions are to make assertive submissions before appellate Court; that I wish to pledge as security (by way of a Demand Draft in aggrieved persons name) before appellate Court records subject to its release to aggrieved person / wife if I loose my appeal on merits and further pray for expeditious disposal of appeal and say with confidence before bench that no harm will be caused to aggrieved person if already a DD is placed on record and further you are humbly submitting for expeditious disposal of the appeal either way after hearing both sides !. 

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