Whether landlord can execute order of grant of interim rent even though defence of tenant is struck off?

 The impugned order was passed by the Court under Order 15-A of the Code of Civil Procedure directing the defendant to pay rent and deposit arrears. No fault can be found with such a direction. In this case, the defendant failed to obey the order and failed to deposit the arrears. The consequence of such failure is given in the same Rule 1 of Civil Procedure Code. The Rule says that if such order is not obeyed, the defence shall be struck out. The learned Counsel for the applicant/plaintiff contended that striking out of defence is a mode of enforcement while execution by attachment is mode of satisfaction. In 1999 (1) SCC 405, Smt. Kuldip Kaur v. Surinder Singh, it is observed as follows:

6. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a 'mode of enforcement'. It is not a 'mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realized that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who 'without reasonable cause' refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears.

6. Therefore, even though the remedy by way of striking out of defence is available, that does not deprive the plaintiff to resort to mode of satisfaction. Ordinarily, therefore, an order can be executed for satisfaction. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 1193 of 1999

Decided On: 13.03.2007

Gwaldas Shivkisanji Lakhotia Vs. Bapurao Arjunji Bandabuche

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Whether order for interim maintenance can be executed within twelve years from date of order?

It is fallacious to appreciate that the order or decree passed by the Court under the Hindu Marriage Act as well as by the Family Court, would be enforced under the provisions of Article 137 of the Limitation Act. There is specific provision under Article 136 of the Part I of the Third Division of Schedule of Limitation Act for period of limitation to execute the decree or order of the Civil Court. It would be reiterated that the decree or order under Hindu Marriage Act as well as passed by the Family Court all are having same force and effect as a decree or order of the Civil Court and liable to be executed in the same mode and manner as prescribed under the Code of Civil Procedure for execution of decree or order of the Civil Court. The provision of Article 137 is applicable to the proceedings of "any other application" for which no period of limitation is given elsewhere in the Third Division to the Schedule. As referred above, when the specific period of 12 years is prescribed for execution of decree/order of Civil Court, the same provision of 12 years period of limitation is essential to be made applicable to the decree/order by the Family Court or by any Court under Hindu Marriage Act. The procedure meant for execution of decree/order of Civil Court is required to be adopted for execution of decree/order of Family Court or any Court under Hindu Marriage Act. Both the procedures for execution are to be considered analogous with each other. Therefore, when there is a limitation period provided under Article 136 for execution of decree/order of the Civil Court, the decree/order of Family Court under Hindu Marriage Act are permitted to be executed within 12 years period with same force and effect as well as with the same mode and manner prescribed for execution of decree/order of Civil Court. In the result, the procedure would be governed by Article 136 and not by the provision of Article 137 of Limitation Act. The Single Judge of the High Court of Orissa in the case of V. Krishnaveni Vs. V. Narasingha Rao, MANU/OR/0174/1984 : 1984 Law Suit (Ori.) 148 also held that the order under Section 24 of the Act is enforceable within a period of 12 years under Article 136 of the Limitation Act.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 11581 of 2017

Decided On: 07.08.2018

Parag Subhash Parelkar Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

K.K. Sonawane, J.

Citation: 2018(6) MHLJ 504,AIR2019 Bom 9

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Whether provisions of CPC relating to execution of decree shall apply to execution of order?

The   Learned   Counsel   for   the   Petitioner   herein   has   drawn   my
attention to Section 36 of the Civil Procedure Code. It is posited in Section

36 that the provisions of this Code relating to the execution of decrees
(including provisions relating to payment under a decree) shall, so far as
they are applicable, be deemed to apply to the execution of the Orders
(including payment under an Order). Hence the finding of the Executing
Court that the said Application Exhibit 21 was not tenable cannot be
sustained in the light of the Section 36 of the CPC. However, even if the
said Application for execution is tenable, considering the fact that the
Petitioners have invoked Order 21 Rule 32 of the CPC, the Executing
Court   would   have   to   adjudicate   upon   the   said   Application   on   the
touchstone of the said provision as also sub Rule 5 of Rule 32 of the CPC.
It is only after the Executing Court is satisfied that there is a willful
default / disobedience of the said Order that the said provision under
Order   21   Rule   32  could   be   invoked.   In  that  view  of  the   matter,  the
impugned Order is set aside and the matter is remanded back to the
Executing Court for a denovo consideration of Exhibit 21 in the light of
the observations made herein above. 
IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4849 of 2010
Dina Dora Sukhia 
V
Jimmy Dora Sukhia 
CORAM :   R.M.SAVANT, J.
          DATE     :   7th DECEMBER,  2011
Citation: 2012 (1) ALLMR 555

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