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2003 DIGILAW 194 (HP)

MEENA DEVI v. RAJINDER SINGH RAJU

2003-07-22

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—It appears, Meena Devi laid a petition, against her husband for grant of Rs. 500 per month, as maintenance, under Section 125 Cr.P.C. before the Sub-Divisional Judicial Magistrate, Theog, in April, 1995. Learned Additional/Chief Judicial Magistrate, Theog, relying upon Smt. Hari Devi v. Bhagat Ram and another, 1996 (2) SLJ HP 1625, sent the case to Gram Panchayat, Sandhu, for decision in accordance with law. The Gram Panchayat by its order dated 8.11.1997 granted maintenance of Rs. 500 per month to petitioner Meena Devi w.e.f. 25.4.1995, the date on which the application for grant of maintenance was laid. The maintenance was not paid by the respondent. Smt. Meena Devi again approached Gram Panchayat by an application dated 6.4.1998 (Annexure P-4) praying that respondent has failed to pay the maintenance amount. The arrears amounted to Rs. 17,500 and this amount may be recovered and paid to the petitioner in accordance with law. The Gram Panchayat sent the file to learned Additional Chief Judicial Magistrate, Theog, for execution of the order of the maintenance. The relevant portion of the order reads: "Complete file along with order is being sent herewith with a request that amount awarded by the Bench to the petitioner in its decision, its order may kindly be executed by issuing the order by the Court. So the justice may be done to the petitioner." 2. Learned Additional Chief Judicial Magistrate by its impugned orders held that there was no provision either in the Criminal Procedure Code or in the Panchayati Raj Act to execute the orders, made by the Panchayat, under Section 125 of the Code of Criminal Procedure and, therefore, the court did not have necessary jurisdiction even under Section 71 of the Panchayati Raj Act, which provides for execution of the decree or order passed by the Gram Panchayat. 3. 3. Section 71(1) of the Act indeed lays down that a decree or order passed by a Gram Panchayat shall be executed by the Gram Panchayat as may be prescribed, and if the property of the defendant is situate outside the jurisdiction of such Gram Panchayat, then it may transfer the decree or order for execution to the Gram Panchayat within whose jurisdiction the property may be situated and if there is no such Gram Panchayat then to Court of sub-Judge within whose jurisdiction it may be situated and Gram Panchayat or the Sub Judge, as the case may be, shall execute the decree or order as if it were a decree or order passed by it or him. 4. Sub-section 2 of Section 71 of the Act provides that if a Gram Panchayat finds any difficulty in executing a decree, then it may forward the decree to the Sub Judge and the Sub Judge shall then execute the decree as if it were a decree passed by him. 5. The learned trial Judge seems to have taken a view that the order made under Section 125 of the Code of Criminal Procedure will not be a decree and it is only a decree which can be transferred for execution to the court of sub-Judge and not any other order. He further held that the Panchayat has to execute its own order passed under Section 125 of the Code of Criminal Procedure. 6. It is in this background that the petitioner has approached this Court in this petition. 7. I have heard Mr. Onkar Jairath, learned Counsel for the petitioner and Mr. G.D. Verma, learned Senior Advocate, instructed by Mr. Romesh Verma, learned Counsel. 8. The question raised in this petition is no longer res-integra. A Single Bench of this Court in Smt. Padmo and others v. Sh. Surat Ram, latest HLJ 2002 (HP) 451 interpreting Section 71 of H.P. Panchayati Raj Act held that Section 71 pertains to the decree or order passed in civil matters and in case of any difficulty in executing a decree, the Gram Panchayat is empowered to forward such decree or order to the Sub Judge, who is required to execute the decree or order as if it were a decree or order passed by him as provided under sub-section (2) of Section 71 of the Act. 9. 9. Expression "Order" though does not occur in sub-section (2), yet, this Court observed, it has to be read therein as this sub-section is in continuation of sub-section (1) of Section 71. 10. In view of the law laid down by this Court in Padmo, order made under Section 125 of the Code of Criminal Procedure is executable by the learned Sub-Judge if the Gram Panchayat concerned finds difficulty in executing such an order. 11. In this view of the matter, learned Sub-Judge, Theog, was not right in refusing to execute the order made by Gram Panchayat under Section 125 of the Code of Criminal Procedure. 12. In result, the petition is allowed. Order of learned Additional, Chief Judicial Magistrate, Theog, dated 10.6.1999 is set aside. The case is remitted back to the court of learned Sub-Judge, Theog, Distt. Shimla for executing the orders of maintenance, subject matter of dispute, in accordance with law. Records of the case shall be remitted back immediately to the court of learned Sub-Judge, Theog, Distt. Shimla.