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Madhya Pradesh High Court · body

2014 DIGILAW 1258 (MP)

Rajesh Kumar Raghuvanshi v. Sunita Raghuvanshi

2014-10-01

U.C.MAHESHWARI

body2014
JUDGMENT 1.Heard on the question of admission. 2. The applicant/husband/judgment-debtor has filed this Revision under Section 115 of CPC against the order dated 21.2.2012 passed by the Additional District Judge, Raisen Execution Case No. 1/12, filed by the respondent/wife/decree holder for execution of the decree passed in her favour against the applicant for restitution of conjugal rights vide dated 13.8.2001 in a Hindu Marriage Case. 3. The applicant's counsel after taking me through the averments of the revision and the papers placed on record along with the impugned order argued that the decree under execution was passed in a proceeding of respondent filed long before under Section 9 of Hindu Marriage Act for restitution of conjugal rights and execution proceeding of the same was filed after more than ten years but before expiry of 12 years from the date of the decree. After passing the decree under execution on behalf of the present applicant a petition under Section 13 (1) of Hindu Marriage Act on the ground of cruelty and desertion was filed against the respondent for decree of divorce, in which after holding trial on appreciation of the same trial Court had dismissed his petition on which he has filed F.A. No. 273/2011 before this court, the same is pending for adjudication. In continuation he said that in pendency of his aforesaid first appeal filed against the dismissal of the petition for divorce the impugned decree of restitution of conjugal rights could not be executed against him, but contrary to it the executing Court has proceeded to execute the same and passed the impugned order directing the applicant to take the respondent with him within six months and perform the marital relation with her, failing which after expiry of six months he shall pay Rs.1,000/- p. m. to the respondent and in failing to pay such sum, the same shall be recovered from him by the respondent as decreetal sum. With these submission he said that in view of pendency of his aforesaid first appeal the impugned decree being non-executable by admitting and allowing this revision be quashed. 4. With these submission he said that in view of pendency of his aforesaid first appeal the impugned decree being non-executable by admitting and allowing this revision be quashed. 4. Before passing any order on merits of the matter in view of proviso of Section 115 of CPC, I made a query from the counsel whether on allowing this revision in favour of the applicant the decree under execution passed in favour of the respondent and against the applicant for restitution of conjugal rights could be set aside or quashed when the same got its finality long before between the parties and specially when the execution proceeding is also filed within 12 years from the date of decree, on which he said that if the court come to this conclusion that in the available scenario of the matter revision is not entertainable then he be permitted to withdraw this revision with liberty to file appropriate proceeding before the appropriate forum permissible under the law to challenge the impugned order. 5. In view of aforesaid, I proceed to examine the matter first on the question of entertainability of this revision under Section 115 of CPC. It is undisputed fact that decree under execution for restitution of conjugal rights has got its finality long before between the parties and execution proceeding has also been filed within the limitation of 12 years from the date of passing the same. It is also settled proposition of law that the executing Court or its revisional or appellate Court could not go behind the terms of the decree. It is also true in the matter that subsequent to passing the impugned decree of conjugal rights, on behalf of the applicant the petition for divorce on the ground of cruelty and desertion was filed against the respondent before the competent court, in which trial was held and on appreciation of the evidence such petition was dismissed by the trial Court against which F.A. No. 273/2011, is pending before this court. I am of the considered view that mere pendency of appeal against dismissal of the petition for divorce is not sufficient ground to quash the impugned decree of restitution of conjugal rights specially when some has got its finality between the parties long before. I am of the considered view that mere pendency of appeal against dismissal of the petition for divorce is not sufficient ground to quash the impugned decree of restitution of conjugal rights specially when some has got its finality between the parties long before. So, in such premises, I am of the considered view that even on entertaining this revision the decree under execution could not be set aside or quashed by this Court, as such this Court has no jurisdiction to go behind the terms of such decree. 6. In view of aforesaid it is held that the present revision filed under Section 115 of CPC in view of its proviso is not entertainable, consequently it deserves to be dismissed but considering the alternate prayer of the applicant's counsel instead to dismiss the same on technical ground he is permitted to withdraw this revision as not pressed with liberty to file appropriate proceeding before the appropriate forum permissible under the law to challenge the impugned order along with the liberty to file appropriate application in this regard in the aforesaid pending first appeal for grant of stay against the impugned execution proceeding till adjudication of such first appeal, if the same is permissible under the law. 7. In view of dismissal of this revision as withdraw with aforesaid liberty, office is directed to return the certified copy of the impugned order by retaining its photo copy on record to the applicant's counsel enabling him to file the appropriate proceedings. There shall be no order as to cost. C. C. as per rules.