My wife filed appeal CM(Main) under article 227 constitution of India, in Delhi High Court against District Court’s order of dismissed her application of u/s 24 for interim maintenance in HMAct. against my divorce petition13(1)(ai),, 24 was dismissed in April 2009, so I guess she must file appeal in July 2009,(90day) but she filed in Sep’09 and too without moving time limitation Condonation application for delay in filing.
Surprisingly, case was listed and judge also didn’t object this & issued notice, again date was in Dec 2009 and Judge made bad in law order.
Now I meet some senior expert, he say that 227 is not maintainable in this appeal, she should file appeal under CPC 151
He said that 227 is like civil writ and writ is not application in this case because lower court didn’t order out of the law or illegality, 227 only come into effect, if lower court did something error as per law.
“In one of the order of Delhi High Court said”
The jurisdiction of this court under Article 227 is limited. The court has supervisory jurisdiction to oversee if the court below had followed the procedure as laid down by the law and has not out-stepped its jurisdiction. It is admitted by the counsel for the petitioner that it is not his case that the court below had out-stepped jurisdiction or has not followed the procedure as laid down by the law or have committed any grave illegality. His case is that the finding on fact as given by the court was not correct."""
my wife in her appeal also.. she plead that lower court didn’t consider facts and its findings are wrong.
senior person told me that time limitation act come into CPC and not in art 227.
Can we ask the Judge(DHC) that since this CM(M) under article 227 is not maintainable and request for dismiss as per law with liberty to her if she wish to file fresh appeal under CPC 151 in HMAct.
I need lawyer’s view point |
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