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2019 DIGILAW 1144 (KAR)

IVOR Monsurate v. Venita @ Veena

2019-06-07

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. 1. The petitioner - husband has filed these writ petitions against the order dated 31.07.2012 in Ex. Case No.19/2006 for order of attachment of immovable property as mentioned in the application dated 24.11.2011 and the order dated 24.06.2015 rejecting the application filed by the petitioner to recall the order dated 31.07.2012. 2. The respondent-wife filed M.C.No.1289/2004 for judicial separation raising various grounds. The same was opposed by the present petitioner. During the pendency of the proceedings, the Family Court by the order dated 30.05.2005 on the application in M.C.No.1289/2004 directed the present petitioner to pay a sum of Rs.50,000/- per month to the respondent/wife as maintenance and Rs.50,000/- towards litigation expenses. That was the subject matter of the writ petition before this Court in W.P.No.17327/2005. This Court after hearing both the parties dismissed the said writ petition as withdrawn in terms of the compromise petition as the parties have agreed to live together. Thereafter, the respondent/wife filed execution petition in Ex.P.No.19/2006 under Order XXI Rule 11 of Code of Civil Procedure and subsequently, the respondent has filed an application under Order XXI Rule 54 of Code of Civil Procedure for order of attachment for immovable property shown in the application on the ground that the present petitioner/judgment debtor is due and liable to pay a sum of Rs.10,62,899/- towards arrears of maintenance. 3. The petitioner/judgment debtor though appeared before the Executing Court through his counsel, has not paid a single pie to the Decree Holder till the date of the order. Therefore, the attachment order has been passed. The present petitioner filed an application under Section 151 of Code of Civil Procedure in Ex.P.No.19/2006 on 29.3.2014 to recall the order dated 31.07.2012 issuing attachment warrant of immovable property. The said application was opposed by the wife by filing objections. The Executing Court, considering the applications and the objections, by the impugned order dated 24.6.2015 dismissed the said applications and ordered to continue the attachment. Hence, the present writ petitions are filed. 4. This Court, by the order dated 28.9.2015 issued notice to the respondent and interim stay of all further proceedings in Ex.P.No.19/2006 was granted subject to the petitioner paying a sum of Rs.20,000/- per month during the pendency of the present writ petitions. 5. Hence, the present writ petitions are filed. 4. This Court, by the order dated 28.9.2015 issued notice to the respondent and interim stay of all further proceedings in Ex.P.No.19/2006 was granted subject to the petitioner paying a sum of Rs.20,000/- per month during the pendency of the present writ petitions. 5. Sri B.M. Halaswamy, learned counsel for the petitioner submits that even before passing the interim order, the petitioner/husband was paying Rs.20,000/- per month to the wife. Therefore, there is no impact of the interim order. The said submission is placed on record. 6. Heard the learned counsel for the parties to the lis. 7. Sri B.M. Halaswamy, learned counsel for the petitioner/husband contends that the impugned order passed by the Executing Court is not a speaking order, which cannot be sustained. He would further contend that the respondent has been living alone in six bedrooms, hall and kitchen belonging to the petitioner and the petitioner became houseless. The medical report of the petitioner would disclose that he suffered severity of depression and depressive reaction. He took treatment at St. John's Medical College Hospital for long time and he has paid a sum of Rs.20,000/- per month by depositing the same in her bank account in Bank of Baroda, M.G.Road branch. Subsequently, the husband holds her bank account. 8. He would further contend that the executing court failed to notice that the petitioner was paying all requirements of their second son including the school fees. For the said purpose, the petitioner mortgaged the property. He further contended that since the marriage itself is broken down and children became majors, he is not liable to pay the maintenance amount. Therefore, he sought to allow the writ petitions. 9. Per contra, Sri Keshava Kumar B., learned counsel for the respondent sought to justify the impugned order passed by the Executing Court issuing attachment of immovable property mentioned in the application and rejecting the application for recall of the order. 10. Having heard the learned counsel for the parties, it is undisputed fact that the respondent/wife filed MC No.1289/2004 before the jurisdictional Magistrate for judicial separation raising various grounds. The same was opposed by the petitioner by filing objections. During the pendency of the proceedings, the wife filed application for interim maintenance. 10. Having heard the learned counsel for the parties, it is undisputed fact that the respondent/wife filed MC No.1289/2004 before the jurisdictional Magistrate for judicial separation raising various grounds. The same was opposed by the petitioner by filing objections. During the pendency of the proceedings, the wife filed application for interim maintenance. The Family Court considering the application and objections by order dated 30.05.2005 while considering IA No.2 directed the present petitioner -husband to pay a sum of Rs.50,000/- per month to the respondent/wife as maintenance and Rs.50,000/- towards litigation expenses, which was the subject matter of the writ petition before this Court in W.P.No.17327/2005. During the pendency of the writ petition, the parties have entered into settlement. Accordingly, compromise petition came to be filed under Order XXIII Rule 3 of Code of Civil Procedure, which reads as under: "COMPROMISE PETITION UNDER ORDER XXIII RULE 4 OF THE CIVIL PROCEDURE CODE The parties herein state as under: The petitioner has filed this petition against the order dated 30.06.2005 made in M.C.No.1289/2004 by the II Addl. Family Judge, Bengaluru, on I.A.No.II. During the pendency of the petition, the petitioners have decided to settle their differences on the following terms: 1. The petitioner hereby withdraw this writ petition. She also undertakes to withdraw M.C.No.1289/2004 pending before the II Addl. Family Court, Bengaluru and all the allegations made therein. 2. The respondent hereby undertakes to open a joint account in the petitioner's and his name forthwith. A sum of Rs.30,000/- (Thirty thousand) shall be deposited before the 5th of every month to enable the petitioner to take care of all household expenses as also her personal expenses in addition to credit card facility for household articles and clothes. Both the childrens education expenses shall be borne by the respondent. 3. Both the parties hereby undertake to live together in harmony in their own interest and that of their children. They also undertake to act in the best interest of their children and shall be jointly responsible for their growth and welfare. 4. The respondent hereby undertakes to withdraw all allegations made against the petitioner in M.C.No.12989/2004 before the II Addl. Family Court, Bengaluru. The parties are at liberty to approach Court in the event of marital or any other grievance and seek appropriate relief. 4. The respondent hereby undertakes to withdraw all allegations made against the petitioner in M.C.No.12989/2004 before the II Addl. Family Court, Bengaluru. The parties are at liberty to approach Court in the event of marital or any other grievance and seek appropriate relief. It is therefore respectfully prayed that this Hon'ble Court be pleased to dispose of this petition on that aforesaid terms. Sd/- (L. GOVINDRAJ) Sd/- ADVOCATE FOR PETITIONER PETITIONER Sd/- (ANANT MANDAGI) Sd/- ADVOCATE FOR RESPONDENT RESPONDENT PLACE: BENGALURU DATE: 06/10/2005" 11. This Court vide order dated 6.10.2005 dismissed the petition in terms of the compromise petition. The said order passed by this Court has reached finality. It is also not in dispute that the respondent/wife filed Ex.P.No.19/2006 before the II Additional Principal Judge, Family Court, Bengaluru, under Order XXI Rule 11 of Code of Civil Procedure. During the pendency of the execution petition, the decree holder filed an application under Order XXI Rule 54 r/w. Section 151 of Code of Civil Procedure to issue an order of attachment of immovable property of the judgment debtor morefully described in the application on 24.11.2011 contending that in terms of the order passed by this Court in W.P.No.17327/2005 dated 6.10.2005, the matter was settled directing the present petitioner to pay monthly maintenance of Rs.30,000/-. In spite of the said order, the judgment debtor did not pay agreed maintenance and has violated the agreed terms of the compromise petition. 12. The material on record also depicts that the wife also filed contempt petition in CCC No.908/2005. This Court disposed of the contempt petition on 23.02.2005 holding that the terms of the compromise petition are executable before the Family Court and reserved liberty to her to file execution petition. She further contended that as per the memo of calculation enclosed in the execution petition, the judgment debtor was due and liable to pay arrears of Rs.10,62,899/-. In spite of the same, the petitioner has not paid single pie and he is leading lavish and luxurious life and more particularly, judgment debtor has agreed the terms of the compromise petition just to cause the hardship to the wife and etc. The said application was opposed. 13. In spite of the same, the petitioner has not paid single pie and he is leading lavish and luxurious life and more particularly, judgment debtor has agreed the terms of the compromise petition just to cause the hardship to the wife and etc. The said application was opposed. 13. The Executing Court considering the entire material on record, on 31.07.2012, held that though the judgment debtor has appeared before the Court through his counsel, has not paid single pie to the decree holder and judgment debtor was due and liable to pay a sum of Rs.10,62,899/-. Therefore, issued attachment warrant of immovable property shown in the application dated 24.11.2011 returnable by 15.09.2012. Instead of paying the amount, the petitioner opted to file one more application under Section 151 of Code of Civil Procedure to recall the order dated 31.7.2012. Considering the said application, the Executing Court passed a detailed order and held that the husband has agreed to bear educational expenses of the children. The parties have agreed to live together as husband and wife along with their children. Insofar as the payment made by the judgment debtor is taken into consideration, it becomes clear that the said order is acted upon and they have to abide by the terms of compromise entered into between them. When the judgment debtor has failed to do so to honour the terms and conditions of the compromise petition, the decree holder is entitled to recover the same. No substantial documents is produced to show that he has paid the entire maintenance amount and that he is not due any amount to the decree holder. In view of the above, the application for recalling cannot be entertained. Accordingly, the application for recalling came to be dismissed and order of attachment has been continued. 14. Though the learned counsel for the petitioner raises several contentions, the fact that remains is that the compromise entered into between the parties in W.P.No.17327/2005 passed by this Court on 6.10.2005 has reached finality. Once the decree in terms of the compromise petition has reached finality, the petitioner is liable to pay maintenance in terms of the compromise entered into between the parties in W.P.No.17327/2005 disposed of on 6.10.2005. Once the decree in terms of the compromise petition has reached finality, the petitioner is liable to pay maintenance in terms of the compromise entered into between the parties in W.P.No.17327/2005 disposed of on 6.10.2005. Hence, the executing Court is justified in allowing the application under Order XXI Rule 54 r/w. Section 151 of code of Civil procedure filed by the Decree Holder for issuing order of attachment of immovable property mentioned in the application and even today, the petitioner has not taken any steps to pay the arrears of maintenance in terms of the decree. When the decree has reached finality, question of recalling the attachment order would not arise. Accordingly, the executing court has rightly rejected the application filed for recalling the order of attachment. The same is in accordance with law. 15. The impugned order passed by the executing Court is based on the decree passed by this Court in terms of the compromise petition entered into between the parties. The same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order under Article 227 of the Constitution of India. Accordingly, the writ petitions are dismissed. Ordered accordingly.