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2018 DIGILAW 437 (HP)

Sohan Singh v. Master Sahil Verma

2018-03-22

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J. (Oral) - This petition has been preferred with a prayer to quash the order dated 27.02.2015 (Annexure P-4) and warrants of attachment of salary, dated 27.12.2014 (Annexure P-6) and 28.02.2015 (Annexure P-7), passed by the learned Judicial Magistrate 1st Class, Court No. 7, Shimla in pending Execution Petition No. 18-4/2009 of Judicial Magistrate 1st Class, Court No. 4, Shimla (re-numbered as 57-4/2014/12 and 11-4/2015/12 of Judicial Magistrate 1st Class, Court No. 3, Shimla), filed for recovery of an amount of Rs. 42,000/-, on account of arrears of maintenance w.e.f. 17th November, 2006 till 17th February, 2009, in pursuance to maintenance awarded in favour of the respondents vide order dated 31.12.2008, passed in Criminal Case No. 72/4 of 2006, by Judicial Magistrate 1st Class, Court No. 4, Shimla. 2. I have heard learned Counsel for the parties and have also gone through the record. 3. It is evident form the record that a warrant of attachment, dated 9th September, 2013, was issued to D.D.O of the petitioner for recovery of Rs. 42,000/-, being an amount of arrears of maintenance allowance till 17.02.2009, with a direction to attach the 1/3rd amount from the salary of the petitioner every month and to remit the same to the Court till realization of total amount of Rs. 42,000/-. 4. In the beginning of the execution proceedings, the petitioner had chosen not to appear before the Executing Court and thus, was proceeded ex-parte. However, later on, he had joined the proceedings and on various dates, in presence of his Counsel, the case was fixed for status of recovery of amount from his salary in pursuance to the warrant of attachment issued to his D.D.O. On receiving no response, again warrants of attachment were ordered to be issued on 26.12.2014 and 27.02.2015 and in pursuance thereto, warrants of attachment, dated 27.12.2014 (Annexure P-6) and 28.02.2015 (Annexure P-7) were issued. Thereafter, petitioner filed the present petition invoking the provisions of section 482 of the Code of Criminal Procedure, 1973 in this Court. 5. Thereafter, petitioner filed the present petition invoking the provisions of section 482 of the Code of Criminal Procedure, 1973 in this Court. 5. The petitioner assailed the issuance of warrants of attachment on the ground that amount in question had already been recovered before May, 2014 and he put reliance upon letter dated 26.05.2014, issued by the D.D.O. in his favour, giving details of recovery made from his salary and payment made in the Court of Judicial Magistrate 1st Class, Court No. 4, Shimla, in compliance to the orders in the execution petition. 6. From the record received from the Executing Court, it is evident that no such letter/communication/certificate was ever produced before the Executing Court, claiming the payment made, satisfying the execution petition on behalf of the present petitioner. Rather, at the time of passing of orders for issuance of impugned warrants of attachment, there is complete silence on behalf of the petitioner herein. 7. Reliance has also been placed by the petitioner on letter, dated 7th April, 2015, issued by the D.D.O. to the Judicial Magistrate 1st Class, Court No. 7, Shimla, which is on record of the Executing Court. According to this letter, in pursuance to warrant of attachment dated 09.09.2013, recovery of Rs. 42,000/- has been made from the salary of the petitioner w.e.f. October, 2013 to April, 2014 and was remitted to the Court. This letter, issued on 7th April, 2015, was received in the Executing Court on 9th April, 2015, whereas present petition was drafted on 30.03.2015 and filed on 3rd April, 2015. 8. From the aforesaid facts and circumstances, it is evident that the petitioner had never placed anything on record, indicating the satisfaction of the execution petition filed by the respondents. The letter, dated 26.05.2014 filed with the present petition in this Court was in possession of the petitioner since May, 2014, but the same was never produced in the Executing Court. Letter, dated 7th April, 2015 was received by the Executing Court on 9th April, 2015. The execution petition was listed before the Executing Court on 15th March, 2016. On this date, there was no representation on behalf of the petitioner herein, and the petition was adjourned for 24.05.2016. Letter, dated 7th April, 2015 was received by the Executing Court on 9th April, 2015. The execution petition was listed before the Executing Court on 15th March, 2016. On this date, there was no representation on behalf of the petitioner herein, and the petition was adjourned for 24.05.2016. During the interregnum, letter dated 7th April, 2015 was received, but before it could have been taken into consideration by the Executing Court, the petitioner obtained the stay of further proceedings in the execution petition from this Court vide order dated 17th April, 2015. Therefore, there was no occasion for the Executing Court to take the letter dated 7th April, 2015, sent by the D.D.O. to the Executing Court, into consideration. 9. In view of the above discussion, I find that the present petition has been filed by the petitioner in this Court without any cause of action, without any endeavour to put forward his version, by placing material before the Executing Court. Hence, the present petition is disposed of, with liberty to the petitioner to place the entire material, relied upon by him, before the Executing Court, which shall consider the same on its own merit to decide the execution petition accordingly. 10. The parties are directed to appear before learned Chief Judicial Magistrate, Shimla, on 6th April, 2018, who shall decide the said execution petition himself or transmit the same to the appropriate Court, to which it is assigned, with a direction to the parties to make appearance before the said Court. Record be sent back to Executing Court through the Chief Judicial Magistrate, Shimla. 11. Pending application(s), if any, also stands disposed of.