1 R.A.114.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD REVIEW PETITION NO. 114 OF 2011 IN FAMILY COURT APPEAL NO. 12 OF 2011 Sunil S/o Loaxmanrao Salve, Age : 48 Years, Occup.: Service, R/o Dadasaheb Gaikwad Housing Society, Samata Nagar, Behind Kranti Chowk Police Station, Aurangabad. ...PETITIONER VERSUS Mrs. Chhaya W/o Sunil Salve, Age : 43 Years, Occup. Service, R/o 279, Khas Baag, Tq. And Dist. Beed. ...RESPONDENT ... Mr.P.V.Mandlik,Sr.Counsel instructed by Mr.A.S.Gandhi, Advocate for petitioner. Mr.R.S.Deshmukh,Advocate for respondent. ... CORAM: S.S. SHINDE, S.V.GANGAPURWALA JJ. DATE : 7TH SEPTEMBER, 2011 PER COURT : . Present petitioner had filed petition for divorce and for custody of children. The same was allowed by the Judge, Family Court, Aurangabad vide Judgment and order dated 20.12.2006. 2 R.A.114.11 Present respondent, thereafter, filed an application bearing Civil Application No. 01 of 2009 for setting aside the ex-parte decree. The said application came to be allowed vide judgment and order dated 25.02.2011. Present petitioner assailed the said order in Family Court Appeal No. 12 of 2011. This Court vide judgment and order dated 30.03.2011 dismissed the said Family Court Appeal. The present petitioner/applicant has assailed the said order in the present Review Application. 2. Shri P.V. Mandlik,learned Senior Counsel instructed by Shri A.S.Gandhi, learned counsel for petitioner submits that First Appellate Court is last fact findings Court, has to frame the necessary points for determination as contemplated in Order 41 rule 31 of the Code of Civil Procedure. Learned Senior Counsel placed reliance on the judgment of the Division Bench of this Court in the case of Khatunbi Wd/o Mohammad Sayyed and others Vs. Aminabai W/o Mohammad Sabir 3 R.A.114.11 reported in 2006(6)MH.L.J.759 and the Judgment of learned Single Judge of this Court in the case of Janardhan Nago Patil Vs. Ramchandra Ramdas Mishra reported in 2003(4)Mh.L.J,853. . Learned Senior counsel further contends that the Family Court Appeal being in the nature of the First Appeal, unless and until record is called the appeal cannot be decided. In the present matter, when the said Family Court Appeal was dismissed, points for determination were not framed nor record was called. Such procedure is not in consonance with provisions of Order 41 of the Code of Civil procedure. . It is further contended by the learned Senior Counsel that even summons were served, the postal acknowledgment on record clearly shows that present respondent was intimated by the postman and same would amount to proper service. This aspect also has not been considered. Learned Senior counsel further contends that the 4 R.A.114.11 respondent had filed the copy of the plaint of the present proceeding in the Sessions Court i.e. separate proceeding, this itself shows that respondent had knowledge of the present proceeding, in such circumstances, proviso to Rule 13 of Order 9 of the Code of Civil Procedure is attracted and this aspect has not been considered. In the light of above, learned Senior Counsel contends that order passed in Family Court Appeal dated 30.03.2011 needs to be reviewed. 3. Mr. Deshmukh, learned counsel for respondent submits that no error has been committed in coming to the conclusion that summons has not served. The said aspect is dealt with properly. 4. No doubt, the First Appellate Court is last fact finding Court and in normal circumstance Appeal would be decided by framing points for determination and calling record. 5. The Family Court Appeal No. 12 of 2011 was 5 R.A.114.11 against the order passed by the Judge, Family Court, in Misc. Application, wherein the learned Judge had set aside the ex-parte judgment and decree. The only issue before the Court was “whether summons was properly served or not?” The learned Judge, Family Court while considering such Misc. Application had categorically come to the conclusion that summons was not properly served. This Court, while dealing with appeal had gone through the Judgment and thereby arrived at conclusion that reasoning adopted by the learned Judge, Family Court, while allowing said Misc. Application did not suffer from any illegality. Bailiff report clearly shows that when bailiff had gone to serve the summons, the present respondent was not available. Even on the postal envelop endorsement was made that intimation given. The learned Judge, Family Court has considered the provisions of Order V of the Code of Civil Procedure. 6. It is manifest that endorsement on the postal 6 R.A.114.11 envelop only signifies about intimation being given and not further. In such circumstances no presumption of service arises. 7. In view of the above, proviso to rule 13 of Order 9 of the Code of Civil Procedure is in applicable to the present case. Present case is a case of non-service of summons and not a case of irregularity of service of summons. 8. In the light of above, the order passed by this Court dismissing Family Court Appeal is not required to be reviewed, even otherwise scope of the Court entertaining Review Application as contemplated under section 114 read with section 47 of the Code of Civil Procedure is in narrow compass. In the light of above, there is no error apparent on the face of record. Hence, Review Application stands dismissed. Sd/- Sd/- [S.V.GANGAPURWALA, J.] [S.S. SHINDE, J.] MTK. 7 R.A.114.11