After going through the order of the learned trial Court, I am satisfied that the Court below has passed the said order in ignorance of the provisions of Section 28-A of the Act, 1955. Section 28-A of the Act of 1955 makes the order which has been passed by the Court under Section 24 of the Act, 1955, enforceable as a decree. In case the impugned proceeding would have been continued, then the petitioner-wife could have enforced this order with the help of the Court by praying for slay of the, proceedings of the main petition. This course would have been available to the petitioner-wife during the pendency of the main proceedings but, after termination of those proceedings on any ground either on merits or dismissal for non-prosecution it cannot be said that the petitioner's right to recover the aforesaid amount from the respondent-husband extinguished or lost. The finding of the learned trial Court that the interim order, passed in any proceedings would itself get extinguished or lost the sanctity with the ultimate fate of the main proceedings is perverse on the face of it. In case, such interpretation is given to or in case the order passed under Section 24 of the Act is to be allowed to be extinguished or lost with the ultimate fate of the main proceedings, then, the whole purpose of enacting the aforesaid section in the Act will be frustrated. Apart from this, it will be detrimental to the interest of the concerned spouse. Not only this but it will be easy for a spouse who does not want to pay the amount of the maintenance or the cost of the litigation despite of the order of the Court to deny the same by allowing the dismissal of the petition for non-prosecution. Section 28-A was substituted in the Act of 1955 to mitigate the hardships. For want of provisions of Section 28-A the order passed under Section 24 of the Act of 1955 would not be executable but now this order is enforceable as in the like manner as decrees and orders bf the Court made in exercise of its original jurisdiction.
2. To appreciate the controversy which has arisen the present revision application, few facts are to be stated. The respondent-husband, Yogendrakumar Shankargir Goswami, filed a petition being H.M.P. No. 43 of 1986 against the petitioner-wife, Lataben, for a decree of restoration of conjugal rights. On receipt of the notice of the aforesaid petition, the petitioner-wife put appearance in those proceedings. On 1-4-1988 the petitioner-wife filed an application under Section 24 of the Hindu Marriage Act in those proceedings for grant of interim alimony and expenses of litigation. That application was allowed by the learned trial Court and the husband-respondent was ordered to pay Rs. 200 per month as an interim alimony to the petitioner-wife from 1-4-1988 and a sum of Rs. 300 towards the cost of the litigations. The aforesaid order of allowing the application for interim alimony and the cost of litigation has been challenged by the respondent-husband before this Court by filing the Civil Revision Application No. 758 of 1988 but the said application was rejected by this Court.
2A. The learned trial Court has given sufficient time to the respondent-husband for making the payment of the amount of interim alimony and the litigation expenses but he had not paid single paise to the petitioner-wife. On the other hand, both the counsel for the respondent as well as the respondent started remaining absent on the subsequent dates of the proceedings in the main petition and ultimately the said main petition has been dismissed for non-prosecution on 5th August, 1993.
3. The petitioner-wife filed Execution Application 53 of 1993 in the Court of the learned District Judge, Bharuch, for the recovery of the amount of alimony at the rate of Rs. 200 per month for the period from 1-4-1988 to 5-8-1993 and Rs. 300 as the cost of litigation totalling to Rs. 13,300. This application appears to have been transferred to the Court of the Second Extra Assistant Judge, Bharuch, for disposal. The notice of the said Execution Application was duly served upon the respondent-husband on 10th October, 1993 hut he did not choose to appear before the Court either personally or through his advocate. The executing Court vide its impugned order held this application to be not maintainable hence this revision application.
4. The learned counsel for the petitioner, Shri Pandya, contended that the learned Executing Court has failed to exercise the jurisdiction which vests in it in the present case. It has next been contended by Shri Pandya that while dismissing the application of the petitioner the learned trial Court has not considered the provisions of Section 28-A of the Hindu Marriage Act, 1955. Section 28-A of the aforesaid Act makes the orders passed by the Court in the proceedings under the said Act enforceable in the like manner as decrees and orders of the Court made in exercise of its original civil jurisdiction. Lastly, Shri Pandya contended that even if the main petition has been dismissed for any reason, the respondent-husband still is under a legal obligation to comply with the order which has been passed by the Court granting the interim alimony and the costs of the litigation to the petitioner-wife.
5. I have considered the contention which have been made by Shri Pandya. Section 28-A has been substituted in the Act by the Marriage Laws (Amendment) Act, 1976. The aforesaid section reads as follows:
"28-A. Enforcement of decrees and orders.-- All decrees and orders made by the Court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced."
The Parliament by enacting Section 28-A to the Act of 1955 made all the decrees and orders made by the Court in any proceedings under the Act of 1955 enforceable in the like manner as the decrees and orders of the Court made in exercise of its original civil jurisdiction. Section 24 of the Act of 1955 provides for the grant of maintenance pendente lite and expenses of proceedings. Section 24 of the Act empowers the Court before whom the proceedings are pending under the aforesaid Act to pass an order for the grant of maintenance pendente lite and expenses of proceedings on the application of wife or the husband as the case may be. The order for the maintenance pendente lite passed under the Act, 1955, remains in force only during the proceedings. It is not in dispute that the proceedings which have been initiated by the respondent-husband under Section 9 of the Act, 1955, remained pending till 5-5-1993 and as such the petitioner-wife is entitled to recover the amount of the maintenance as well as the cost of the litigation for the period from 1-4-1988 to 5-8-1993.
6. After going through the order of the learned trial Court, I am satisfied that the Court below has passed the said order in ignorance of the provisions of Section 28-A of the Act, 1955. Section 28-A of the Act of 1955 makes the order which has been passed by the Court under Section 24 of the Act, 1955, enforceable as a decree. In case the impugned proceeding would have been continued, then the petitioner-wife could have enforced this order with the help of the Court by praying for slay of the, proceedings of the main petition. This course would have been available to the petitioner-wife during the pendency of the main proceedings but, after termination of those proceedings on any ground either on merits or dismissal for non-prosecution it cannot be said that the petitioner's right to recover the aforesaid amount from the respondent-husband extinguished or lost. The finding of the learned trial Court that the interim order, passed in any proceedings would itself get extinguished or lost the sanctity with the ultimate fate of the main proceedings is perverse on the face of it. In case, such interpretation is given to or in case the order passed under Section 24 of the Act is to be allowed to be extinguished or lost with the ultimate fate of the main proceedings, then, the whole purpose of enacting the aforesaid section in the Act will be frustrated. Apart from this, it will be detrimental to the interest of the concerned spouse. Not only this but it will be easy for a spouse who does not want to pay the amount of the maintenance or the cost of the litigation despite of the order of the Court to deny the same by allowing the dismissal of the petition for non-prosecution. Section 28-A was substituted in the Act of 1955 to mitigate the hardships. For want of provisions of Section 28-A the order passed under Section 24 of the Act of 1955 would not be executable but now this order is enforceable as in the like manner as decrees and orders bf the Court made in exercise of its original jurisdiction.
7. It is the case where the learned Executing Court has failed to exercise the jurisdiction which vests in it. In case the order of the learned Executing Court is allowed to stand, it will not only occasion a failure of justice to the petitioner but will cause irreparable injury to the petitioner. The petitioner was entitled for the amount of Rs. 13,300 under the order which has been passed under Section 24 of the Act, 1955, in the proceedings initiated by the respondent under Section 9 of the said Act.
In the result, this revision application succeeds and it is allowed. The order of the 2nd Extra Assistant Judge, Bharuch, dated 16-2-1994 passed in Execution Petition No. 53 of 1993 is set aside. The learned Executing Court is directed to proceed with the matter in accordance with law. No order as to costs.
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Gujarat High Court
Lataben Yogendrakumar Goswami vs Yogendrakumar Shankargir ... on 20 January, 1995
Equivalent citations: AIR 1996 Guj 103, (1996) 1 GLR 111
1. This revision petition is directed by the petitioner against the order dated 16-2-1994 passed by the learned Assistant Judge, Bharuch, in Execution Petition No. 53 of 1993 whereunder the execution application filed by the petitioner has been held to be not maintainable.2. To appreciate the controversy which has arisen the present revision application, few facts are to be stated. The respondent-husband, Yogendrakumar Shankargir Goswami, filed a petition being H.M.P. No. 43 of 1986 against the petitioner-wife, Lataben, for a decree of restoration of conjugal rights. On receipt of the notice of the aforesaid petition, the petitioner-wife put appearance in those proceedings. On 1-4-1988 the petitioner-wife filed an application under Section 24 of the Hindu Marriage Act in those proceedings for grant of interim alimony and expenses of litigation. That application was allowed by the learned trial Court and the husband-respondent was ordered to pay Rs. 200 per month as an interim alimony to the petitioner-wife from 1-4-1988 and a sum of Rs. 300 towards the cost of the litigations. The aforesaid order of allowing the application for interim alimony and the cost of litigation has been challenged by the respondent-husband before this Court by filing the Civil Revision Application No. 758 of 1988 but the said application was rejected by this Court.
2A. The learned trial Court has given sufficient time to the respondent-husband for making the payment of the amount of interim alimony and the litigation expenses but he had not paid single paise to the petitioner-wife. On the other hand, both the counsel for the respondent as well as the respondent started remaining absent on the subsequent dates of the proceedings in the main petition and ultimately the said main petition has been dismissed for non-prosecution on 5th August, 1993.
3. The petitioner-wife filed Execution Application 53 of 1993 in the Court of the learned District Judge, Bharuch, for the recovery of the amount of alimony at the rate of Rs. 200 per month for the period from 1-4-1988 to 5-8-1993 and Rs. 300 as the cost of litigation totalling to Rs. 13,300. This application appears to have been transferred to the Court of the Second Extra Assistant Judge, Bharuch, for disposal. The notice of the said Execution Application was duly served upon the respondent-husband on 10th October, 1993 hut he did not choose to appear before the Court either personally or through his advocate. The executing Court vide its impugned order held this application to be not maintainable hence this revision application.
4. The learned counsel for the petitioner, Shri Pandya, contended that the learned Executing Court has failed to exercise the jurisdiction which vests in it in the present case. It has next been contended by Shri Pandya that while dismissing the application of the petitioner the learned trial Court has not considered the provisions of Section 28-A of the Hindu Marriage Act, 1955. Section 28-A of the aforesaid Act makes the orders passed by the Court in the proceedings under the said Act enforceable in the like manner as decrees and orders of the Court made in exercise of its original civil jurisdiction. Lastly, Shri Pandya contended that even if the main petition has been dismissed for any reason, the respondent-husband still is under a legal obligation to comply with the order which has been passed by the Court granting the interim alimony and the costs of the litigation to the petitioner-wife.
5. I have considered the contention which have been made by Shri Pandya. Section 28-A has been substituted in the Act by the Marriage Laws (Amendment) Act, 1976. The aforesaid section reads as follows:
"28-A. Enforcement of decrees and orders.-- All decrees and orders made by the Court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced."
The Parliament by enacting Section 28-A to the Act of 1955 made all the decrees and orders made by the Court in any proceedings under the Act of 1955 enforceable in the like manner as the decrees and orders of the Court made in exercise of its original civil jurisdiction. Section 24 of the Act of 1955 provides for the grant of maintenance pendente lite and expenses of proceedings. Section 24 of the Act empowers the Court before whom the proceedings are pending under the aforesaid Act to pass an order for the grant of maintenance pendente lite and expenses of proceedings on the application of wife or the husband as the case may be. The order for the maintenance pendente lite passed under the Act, 1955, remains in force only during the proceedings. It is not in dispute that the proceedings which have been initiated by the respondent-husband under Section 9 of the Act, 1955, remained pending till 5-5-1993 and as such the petitioner-wife is entitled to recover the amount of the maintenance as well as the cost of the litigation for the period from 1-4-1988 to 5-8-1993.
6. After going through the order of the learned trial Court, I am satisfied that the Court below has passed the said order in ignorance of the provisions of Section 28-A of the Act, 1955. Section 28-A of the Act of 1955 makes the order which has been passed by the Court under Section 24 of the Act, 1955, enforceable as a decree. In case the impugned proceeding would have been continued, then the petitioner-wife could have enforced this order with the help of the Court by praying for slay of the, proceedings of the main petition. This course would have been available to the petitioner-wife during the pendency of the main proceedings but, after termination of those proceedings on any ground either on merits or dismissal for non-prosecution it cannot be said that the petitioner's right to recover the aforesaid amount from the respondent-husband extinguished or lost. The finding of the learned trial Court that the interim order, passed in any proceedings would itself get extinguished or lost the sanctity with the ultimate fate of the main proceedings is perverse on the face of it. In case, such interpretation is given to or in case the order passed under Section 24 of the Act is to be allowed to be extinguished or lost with the ultimate fate of the main proceedings, then, the whole purpose of enacting the aforesaid section in the Act will be frustrated. Apart from this, it will be detrimental to the interest of the concerned spouse. Not only this but it will be easy for a spouse who does not want to pay the amount of the maintenance or the cost of the litigation despite of the order of the Court to deny the same by allowing the dismissal of the petition for non-prosecution. Section 28-A was substituted in the Act of 1955 to mitigate the hardships. For want of provisions of Section 28-A the order passed under Section 24 of the Act of 1955 would not be executable but now this order is enforceable as in the like manner as decrees and orders bf the Court made in exercise of its original jurisdiction.
7. It is the case where the learned Executing Court has failed to exercise the jurisdiction which vests in it. In case the order of the learned Executing Court is allowed to stand, it will not only occasion a failure of justice to the petitioner but will cause irreparable injury to the petitioner. The petitioner was entitled for the amount of Rs. 13,300 under the order which has been passed under Section 24 of the Act, 1955, in the proceedings initiated by the respondent under Section 9 of the said Act.
In the result, this revision application succeeds and it is allowed. The order of the 2nd Extra Assistant Judge, Bharuch, dated 16-2-1994 passed in Execution Petition No. 53 of 1993 is set aside. The learned Executing Court is directed to proceed with the matter in accordance with law. No order as to costs.
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