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2017 DIGILAW 592 (MAD)

B. R. Shanmugam v. Lakshmi Shanmugam

2017-03-09

J.NISHA BANU

body2017
JUDGMENT : 1. This Civil Revision Petition has been filed against the order of the Principal Subordinate Judge, Thanjavur, made in E.P. No. 134/97 in H.M.O.P. No. 254/91 dated 13.11.2006, whereby, the petition filed by the respondent was allowed by the Court below. Aggrieved over the same, the petitioner is before this Court. 2. The petitioner is the husband of the respondent herein and the respondent herein had filed H.M.O.P. No. 254 of 1991 before the Court below for restitution of conjugal rights. The petitioner filed H.M.O.P. No. 59 of 1992 on the file of the Sub-Court, Kumbakonam, for dissolution of marriage on the ground of cruelty. 2.1. Both the cases were tried jointly and ultimately, the respondent's petition for restitution of conjugal rights was dismissed and the petitioner's petition for dissolution of marriage was allowed and appeals were filed against the respective orders in CMA Nos.17 and 18 of 1993 on the file of the District Court, Thanjavur and the same were also dismissed against which, second appeals in C.M.A.SA. Nos. 13 and 16 of 1993 were filed by the respondent herein and the same were allowed on 13.09.1995. Thereafter, the petitioner filed Special Leave Petition Nos. 681 and 682 before the Hon'ble Supreme Court and the same were dismissed on 25.01.1996. Consequently, the decree passed in favour of the restitution of conjugal rights was confirmed. 2.2. It is the further case of the petitioner that though he expressed his desire to join with the respondent, the respondent herein has chosen to lodge a false compliant on the file of the XVII Metropolitan Magistrate Court, Saidapet in C.C. No. 4914/96 under Sections 498A and 406 IPC and Section 4 of Dowry Prohibition Act by taking vindictive attitude against the petitioner. The said compliant was quashed by this Court in Crl. O.P. No. 3328/98 dated 20.10.1998 with an observation that the compliant of the respondent is nothing but a retaliation and the same is soaked in vindictiveness. 2.3. After quashing of the Criminal Original Petition, the petitioner choose to file H.M.O.P. No. 90 of 2000 for divorce on the ground of cruelty and the respondent herein has filed E.P. No. 134 of 1997 for execution of the decree of restitution of conjugal rights. Divorce petition was dismissed against which the petitioner preferred C.M.A. No. 5 of 2007. 2.3. After quashing of the Criminal Original Petition, the petitioner choose to file H.M.O.P. No. 90 of 2000 for divorce on the ground of cruelty and the respondent herein has filed E.P. No. 134 of 1997 for execution of the decree of restitution of conjugal rights. Divorce petition was dismissed against which the petitioner preferred C.M.A. No. 5 of 2007. The Executing Court passed an order directing the petitioner to pay a sum of Rs.7,000/- per month and if he failed to do so, his salary was directed to be attached. Against which, the present Civil Revision Petition has been filed. 3. Originally, the matter came up for admission on 16.03.2007 and at the request of the petitioner, it was adjourned to 21.03.2007 and when it came up for hearing on the said date, the matter was admitted and an order of interim stay was granted by this Court. Subsequently, when the matter came up for hearing on 17.01.2017, the petitioner side appeared and sought time to verify the present status and it was informed that in C.M.A. No. 5 of 2007 divorce was granted to the petitioner on 22.09.2014 and though the case was adjourned on various dates, in all these hearings, despite printing the name of the respondent in the cause list, the respondent remained absent and she neither appeared through her counsel nor in person and therefore, this Court proceeded with the matter on the basis of the arguments advanced on behalf of the petitioner as well as with the available records placed before it. 4. The petitioner has raised very many grounds in the Civil Revision Petition to set aside the order made in E.P. No. 134/97 in H.M.O.P. No. 254/91 dated 13.11.2006. More particularly, he produced the divorce order granted in C.M.A. No. 5 of 2007 in favour of the petitioner and filed the same by way of an additional typed set of papers and would state that restitution of conjugal rights held against this petitioner has become in-executable. There is no compensation fixed by the Court and therefore, a direction to pay Rs.7,000/- per month from the salary of the petitioner should not have been done. To sum up, he would submit that the learned Judge ought not to have travelled beyond the scope of the relief sought for by the respondent. 5. There is no compensation fixed by the Court and therefore, a direction to pay Rs.7,000/- per month from the salary of the petitioner should not have been done. To sum up, he would submit that the learned Judge ought not to have travelled beyond the scope of the relief sought for by the respondent. 5. On perusal of the records, it is seen that the petition for execution petition has been filed under Order 21 Rule 32. The said section is usefully extracted below for the purpose of deciding the issue in question:- Order 21 Rule 32: Decree for specific performance, for restitution of conjugal rights, or for an injunction:- (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights or for an injunction, has been passed has had opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced [in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. ...... (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for [six months], if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application...... ” 6. A categorical reading of the afore-said provision would throw light upon to this Court, the Court has not followed the procedure as contemplated under Order 21 Rule 32 and therefore, I have no hesitation to hold that the order impugned in this Civil Revision Petition cannot be sustained in the eye of law. Further, the interim order was granted at the time of admission stage and now, the petitioner has produced the order granted for divorce in C.M.A. No. 5 of 2007 and as on today, the order passed against this petitioner has become non-est in the eye of law. As stated earlier, the respondent has also not appeared inspite of several adjournments. Further, the interim order was granted at the time of admission stage and now, the petitioner has produced the order granted for divorce in C.M.A. No. 5 of 2007 and as on today, the order passed against this petitioner has become non-est in the eye of law. As stated earlier, the respondent has also not appeared inspite of several adjournments. When that being the factual position, this Court has no other option but to allow this Civil Revision Petition. In fine, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.