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kapilshah   27 June 2015

Can a review petition of sec 24 hma filed in same court

Hi 

Can a review petition in same family court be filed for a Interim maintenace case ? The hon'ble court has failed to look into salary details of wife furnished by me.  

 

If yes , what is procedure and under what section/provision ?

regards

kapil.



Learning

 9 Replies

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     27 June 2015

using ORDER XLVII : REVIEW 

 

Or,

 

you can make an appeal by filing a writ petition of Article 227 (Supervisory power of High Court).

You can get sample petition from my links in my profile.

kapilshah   27 June 2015

Thanks for the input. 

I am aware of the Article 227 of high court. But in Order XLVII  , Will such review be allowed even in cases where the judgement doesn't mention anything like appeal allowed etc ?

 

 

 

kapilshah   27 June 2015

From Civil procedure code Order 47 Rule 1

1. Application for review of judgment.- (1) Any person considering himself aggrieved,—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(C) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, 6r on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Explanation : The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.

 

Can I file review based on the fact that there is miscarriage of justice , as court failed to look upon the salary of the wife from the evidences filed in same court.

The point is going to high court shall delay the proceedings further. Thus reluctant.

Jai Karan Nagwan (consultant)     28 June 2015

Better to go for 1st appeal. If review is delayed, appeal period will expire.

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     28 June 2015

I agree with Mr. Jai Karan Nagwan. Go to HC with Article 227.

kapilshah   28 June 2015

My main case hearing is due in 1 week time. I have 25 days time to file a 1st appeal in high court. 

Wonder if I file a review petition on immediate hearing if he doesn't accept it , I shall file then at high court. I was hesitant to take up at high court as get a verdict at high court shall take time.

kapilshah   28 June 2015

Another point is that the hearing is within 1 week and the family court would ask to pay 1st installment even before the hearing of the proceeding starts.

If I pay that installment , I may loose the right to appeal at High court as I accepted the judgement. Though I have 25 days time to appeal.

Prashant Ghai (Advocate) (PrashantGhai.com)     28 June 2015

@kapilshah : Approaching the High Court via a Civil Writ Petition under Article 226 of the Constitution of India, would be the most ideal thing to do at the moment. Be sure to file an Application for stay of the Order of the Family Court as well. If you have a good case + some luck, you may even get a stay on the first hearing.

Jai Karan Nagwan (consultant)     13 July 2015

Writ is not a substitute to appeal.. I suggested appeal not writ. As per me writ is not maintainable. Right legal course is review or appeal not writ.

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