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2023 DIGILAW 135 (ORI)

Sudhansu Sekhar Jena v. Kalpana Parida

2023-01-25

R.K.PATTANAIK

body2023
JUDGMENT R.K. Pattanaik, J. - Instant petition under Section 482 Cr.P.C. is filed by the petitioner assailing the impugned order dated 22nd July, 2022 passed in Criminal Execution No.27 of 2020 passed by the learned Judge, Family Court, Bhubaneswar arising out of CRP No.83 of 2013 pending disposal of CMC Nos.8 of 2019 and 01 of 2021 corresponding to Criminal Execution Nos.27 of 2020 and 51 of 2022 respectively on the grounds stated inter alia that issuance and execution of NBWA towards recovery and realization of arrear maintenance is unjustified and untenable in law and hence the same is liable to be interferred with and set aside with a consequential direction to consider and dispose of applications filed under Section 126(2) Cr.P.C. as the maintenance directed and payable to the opposite parties was allowed ex-parte. 2. While dealing with the execution proceeding, the learned Family Court vide the impugned order 22nd July, 2022 in Criminal Execution No.27 of 2020 denying recall of DW moved by the petitioner and since the arrear dues was not paid to the opposite parties despite opportunities provided, issued NBWA against him. Being aggrieved by the said order, the petitioner approached this Court on the ground that such execution could not have been directed during the pendency of the application under Section 126(2) Cr.P.C. and hence, the coercive action for realization of maintenance allowed ex-parte is bad in law. 3. Heard Mr. Routray, learned counsel for the petitioner and Mr. Dash, learned counsel for the opposite parties. 4. The petitioner is the husband of opposite party No.1 and father of opposite party No.2. As it appears, opposite party No.1 has married the petitioner in 2008 but thereafter disturbance started in their marital life, as a result of which, the former filed an application under Section 125 Cr.P.C. for maintenance from the latter in CRP No.83 of 2013. The said application was disposed of on 7th August, 2014 with a direction by the learned Family Court to the petitioner to pay Rs.10,000/- and Rs.8,000/- to opposite party Nos.1 and 2 respectively. The petitioner then moved an application under Section 126(2) Cr.P.C. in CMC No.2 of 2014 against the order of maintenance dated 7th August, 2014 passed in CRP No.83 of 2013. In the meantime, execution was levied by opposite party No.1 in EP No.63 of 2014 for recovery of arrear maintenance pending by then. The petitioner then moved an application under Section 126(2) Cr.P.C. in CMC No.2 of 2014 against the order of maintenance dated 7th August, 2014 passed in CRP No.83 of 2013. In the meantime, execution was levied by opposite party No.1 in EP No.63 of 2014 for recovery of arrear maintenance pending by then. As it further appears, the petitioner challenged the ex-parte maintenance order dated 7th August, 2014 in RPFAM No.154 of 2014 which was disposed of on 18th March, 2015 with a direction to the learned Family Court to consider the application filed under Section 126(2) Cr.P.C. which was pressed into service for setting aside the ex-parte maintenance order 7th August, 2014 within the time stipulated. While considering such application in CMC No.2 of 2014, the learned Family Court allowed the same but subject to conditions, such as, deposit 50% of the arrear dues within 15 days and balance by the petitioner in two equal monthly installments payable on 1st July, 2015 and 1st August, 2015. Against the said order, the petitioner filed RPFAM No.76 of 2015 which however stood dismissed for non-prosecution but its restoration was allowed subject to cost. In connection with EP No.63 of 2014, the leaned Family Court in the meantime, issued NBWA against the petitioner for non-payment of arrear maintenance for an amount of Rs.2,93,000/-. Against such action of the learned Family Court, the petitioner filed CMC No.1629 of 2016 which was dismissed by order dated 12th April, 2017. As it is also made appear, the petitioner had filed CRLMP No.443 of 2016 challenging the order dated 4th June, 2015 which was the subject-matter of the RPFAM no.76 of 2015 which had been dismissed earlier and its restoration was allowed with cost reduction of which had been applied for in MC No.191 of 2017 which was again dismissed on 3rd August, 2017. In 2017, as it is revealed from the record, the petitioner was arrested in execution of an NBWA and was produced before the learned Family Court, however, was released subject to deposit of an amount. It is further evident that the petitioner time and again challenged the execution proceedings and in RPFAM No.41 of 2019, this Court allowed him to cross-examine opposite party No.1 subject to payment of cost of Rs.30,000/- to her. It is further evident that the petitioner time and again challenged the execution proceedings and in RPFAM No.41 of 2019, this Court allowed him to cross-examine opposite party No.1 subject to payment of cost of Rs.30,000/- to her. By then, from the order of maintenance dated 22nd November, 2019 of the learned Family Court, it is revealed that such cost was not deposited nor the petitioner preferred to cross-examine opposite party No.1 which finally led to the passing of the order of maintenance of Rs.12,000/- and Rs.9,000/- payable to opposite party Nos.1 and 2 respectively. There are other litigations raised by the petitioner in between challenging the execution and realization of arrear maintenance and the coercive measures of the learned Family Court which needs no description. At present, the challenge of the petitioner is against the impugned order dated 22nd July, 2022 passed by the learned Family Court while entertaining an execution proceeding. The ground of challenge is that the ex-parte order of maintenance should not be executed without considering the application filed under Section 126(2) Cr.P.C. 5. Mr. Routray, learned counsel for the petitioner submits that such an application under Section 126(2) Cr.P.C. should have been dealt with as the order of maintenance was directed ex-parte which is strongly opposed and objected to by Mr. Dash, learned counsel for the opposite parties by stating that no application is pending for recall of maintenance order and it was earlier disposed of subject to conditions. It is further submitted by Mr. Dash that the petitioner was allowed to cross-examine opposite party No.1 by order dated 5th August, 2019 in RPFAM No.41 of 2019 on payment of cost but such an opportunity was also not availed of which led to the passing of maintenance order ex-parte dated 22nd November, 2019. 6. Mr. Routray, learned counsel for the petitioner cited the following decisions in Biswanath Kabi Vrs. Susama Dei 1988(I) OLR 31, Sri Arabinda Parida Vrs. Smt. Parulbala Parida 2004 (Supp.) OLR 145 and Dr. P.P. Wilson Vrs. K. Sundaramma and Another 1992 (I) OLR 140-145 in support of his contention. It is submitted that the petitioner's plea for recall of the ex-parte order of maintenance ought to have been considered by the learned Family Court and hence, the execution for the realization of the arrear dues could not have been directed. P.P. Wilson Vrs. K. Sundaramma and Another 1992 (I) OLR 140-145 in support of his contention. It is submitted that the petitioner's plea for recall of the ex-parte order of maintenance ought to have been considered by the learned Family Court and hence, the execution for the realization of the arrear dues could not have been directed. In Biswanath Kabi (supra), this Court held that while passing an ex-parte award, in a proceeding under Section 125 Cr.P.C., it is incumbent on the part of the Magistrate to record reasons of satisfaction. The decision in Dr. P.P. Wilson (supra) relates to the jurisdiction of the court to set aside an order of maintenance in terms of Section 126(2) Cr.P.C. on good cause being shown. The aforesaid decisions are in relation to the ex-parte order of maintenance and its recall or stay of execution in a proceeding pending decision in an application under Section 126(2) Cr.P.C. which is indisputably the settled law. However, in the instant case, whether any such decision for setting aside ex-parte order is pending, which is claimed by the petitioner and denied by the opposite parties is to be ascertained. Mr. Routray, learned counsel for the petitioner claimed the application under Section 126(2) Cr.P.C. to be still pending consideration of the learned Family Court which has been stoutly denied by Mr. Dash, learned counsel for the opposite parties. 7. The quantum of maintenance is fixed at Rs.21,000/- per month by the order of the learned Family Court dated 21st November, 2019. The payment of maintenance covers a period of nearly 10 years and the dues payable to the opposite parties stands at Rs.21 lac and some odd with an amount of Rs.2,60,000/- has so far been realized. Initially the order of maintenance was passed in 2013 which was challenged in RPFAM No.154 of 2014 in which this Court directed the learned Family Court to consider an application under Section 126(2) Cr.P.C. and the same was disposed of on 4th June, 2015 subject to conditions which was questioned in RPFAM No.76 of 2015 and as earlier mentioned, the same was dismissed for non-prosecution and could not be restored. Not only that, said order dated 4th June, 2015 was again challenged in CRLMC No.1629 of 2016 which was dismissed too. Not only that, said order dated 4th June, 2015 was again challenged in CRLMC No.1629 of 2016 which was dismissed too. So to say, the application under Section 126(2) Cr.P.C. filed by the petitioner was disposed of by the learned Family Court and said to have been confirmed on the dismissal of RPFAM No.76 of 2015. Furthermore, the petitioner was allowed to participate in the proceeding under Section 125 Cr.P.C. by order dated 5th August, 2019 in RPFAM No.41 of 2019 but he did not participate and pay the cost of Rs.30,000/- so directed. The final order of maintenance was passed on 22nd November, 2019, wherein, the petitioner initially appeared and challenged the claim of the opposite parties by filing an objection but later on remained absent and though allowed to cross-examine opposite party No.1 by order in RPFAM No.41 of 2019, such opportunity was not availed of. Having considered the background facts, the Court finds that the petitioner moved an application under Section 126(2) Cr.P.C. which was disposed of by the learned Family Court and the order therein was challenged in RPFAM No.154 of 2014 however he was unsuccessful which resulted in the passing of the final order in CP No.83 of 2013. So the ground upon which the petitioner approached this Court that the application filed under Section 126(2) Cr.P.C. was not considered and to be still pending is without any basis as it had been considered long back and was confirmed on disposal of RPFAM No.76 of 2015 and CRLMP No.443 of 2016 which was dismissed as withdrawn. The Court further finds that the petitioner managed to evade payment of arrear dues but in one of such execution proceedings, he was arrested in 2017 and was released on payment of Rs.1,00,000/-. A further amount of Rs.1,00,000/- has been paid by the petitioner on 20th September, 2022 through a Demand Draft dated 28th September, 2022. 8. Having considered all the facts, the conclusion is that the petitioner's application under Section 126(2) Cr.P.C. was decided and disposed of by the learned Family Court and the same attained finality on the disposal of RPFAM No.76 of 2015. The petitioner was also allowed to be a part of the proceeding under Section 125 Cr.P.C. subject to payment of cost and such opportunity was also lost by him. The petitioner was also allowed to be a part of the proceeding under Section 125 Cr.P.C. subject to payment of cost and such opportunity was also lost by him. In such an eventuality, the petitioner has no escape except to honour the final order of maintenance dated 22nd November, 2019 and unless it is complied, he is to face the rigour of law. So it is reiterated that the coercive action of the learned Family Court through the execution proceedings cannot be interferred with which have been set in motion for realization of monthly and arrear dues. Therefore, the conclusion is that no ground exists to interfere with the impugned order dated 22nd July, 2022 passed in Criminal Execution No.27 of 2020 by the learned Family Court, Bhubaneswar. 9. Accordingly, it is ordered. 10. In the result, the CRLMC stands dismissed. As a consequence, the interim order dated 26th October, 2022 passed by this Court is hereby vacated.