JUDGMENT

Sudhir Narain, J.

1. The core question Involved here Is whether the appellant Is liable to pay fixed court fee of Rs. 37.50 under Article 21A of Schedule II of the Court Fees Act as amended in U. P. for the purposes of payment of court fee in the appeal from final order passed in disposing of the application under Section 27 of the Hindu Marriage Act, 1955 (In short the Act) or ad valorem court fee on the basis of valuation fixed In the appeal.

2. Briefly stated the facts are that Dinesh Chandra Saxena. the appellant herein, filed suit for divorce against his wife Smt. Nootan Saxena on the grounds mentioned under Section 13 of the Act before the Family Court. The suit for divorce was decreed. His wife filed an application under Section 27 of the Act to return her stridhan which were in possession of her husband. The Judge. Family Court allowed the application and directed the appellant to pay sum of Rs. 51,000 to the respondent for the goods which were returnable by him to his wife. The appellant filed appeal against this order dated 27.7.1999 under Section 19 of Family Courts Act, 1984 (In short 1984 Act). The Stamp Reporter reported that the appellant was liable to pay ad valorem court fee of Rs. 4,195. The appellant disputed this demand. The Additional Registrar took the view that the ad ualorem court fee is payable by the appellant under Section 7(1)(iv) of the Court Fees Act, 1870. The appellant raised an objection against this decision. The matter has now been referred to me by the Hon'ble the Chief Justice.

3. If any decree is passed under the provisions of Hindu Marriage Act, 1955. appeal lies under Section 28 of the said Act. Section 28 reads as under;

"28. Appeal from decrees and orders.-

(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be applicable as decrees of the Court made in the exercise of its original civil Jurisdiction, and every such appeal shall He to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act, under Section 25 or Section 26 shall, subject to the provisions of sub-section 13), be appealable if they are not interim orders and every such appeal shall lie to the Court to which appeals ordinarily He from the decisions of the Court given in exercise of its original civil Jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order."

4. The Court fees payable on such an appeal is given under Article 21A of Schedule II of Court Fees Act as amended by U. P. Act No. 44 of 1958 which reads as under :

"Application, petition or Memorandum of Appeal under the Special Marriage Act, 1954, or the Hindu Marriage Act, 1955.'. ................ "Thirty-seven rupees and fifty naye paise."

5. The appellant has filed appeal under Section 19 of the Family Courts Act. Article 21A does not make any reference to any appeal under the provisions of the Family Courts Act.

6. The Family Courts Act confers Jurisdiction on the Family Court in regard to substantive rights of a party in respect of family matters covered by provisions of Hindu Marriage Act. Sub-section (1) of Section 7 of 1984 Act lays down that subject to the other provisions of the Act. a Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. Explanation (a) of subsection (1) refers to a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be hull and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage. Clause (cj provides in respect of a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. The Family Court gets the jurisdiction to entertain a suit for divorce or other matters provided under Hindu Marriage Act. Similarly it can entertain an application by a party under Section 27 of the Hindu Marriage Act in regard to any direction In respect of the property.

7. Section 28 only gives a right to a party to file an appeal against decrees and certain orders passed under the Act. It Is a substantive right given to a party to submit an appeal but It does not refer to a forum of appeal. The forum of appeal, in absence of any other provision, is to be determined by Bengal. Agra and Assam Civil Courts Act, 1887. An appeal from a decree or order of a subordinate Judge lies to the District Judge under Section 21 of the Act and from a decree or order of a District Judge or Additional Judge to the High Court under Section 20 of the said Act. Section 19 of 1984 Act provides for filing an appeal from every judgment and order not being interlocutory order of a Family Court to the High Court both on facts and law. Sub-section (1) of Section 19 reads as under :

"Save as provided in subsection (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908] or In the Code of Criminal Procedure. 1973 (2 of 1974). or in any other law. an appeal shall He from every Judgment or order, not being an Interlocutory order, of a Family Court to the High Court both on facts and on law."

8. Substantive right of appeal Is given under Section 28 of Hindu Marriage Act but the forum of appeal is determined under Section 19 of 1984 Act In respect of such matters which are decided by a Family Court. A Division Bench of this Court In Smt. Sorta Devi v. Balwant Singh. AIR 1969 AU 601. held that a right of appeal Is a substantive right and is not mere matter of procedure. As regards where the appeal will lie, it was held that the words "under any law for the time being in force" occurring in Section 28 of 1955 Act only mean that the appeal shall be governed by the provisions contained in the Act which deals with the forum of Civil Appeals.

9. The words 'application, petition or memorandum of appeal' under the Hindu Marriage Act, 1955 must relate to a substantive right of appeal under Its Section 28 but when the matter Is decided by the Family Court exercising power under Section 7 of 1984 Act. the forum of appeal will be determined under Section 19 of 1984 Act. Under Article 21A of Schedule II of Court Fees Act as amended by U. P. Act No. 44 of 1958 a fixed court fee of Rs. 37.50 is payable on a memorandum of appeal. The appellant shall not be liable to pay ad valorem court fee on the basis of valuation contained In Section 7(1)(tu) of the Court Fees Act. The appellant has affixed stamps of Rs. 38 on the memo of appeal. The court fee paid by the appellant Is held sufficient.