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2024 DIGILAW 659 (MP)

Lalit Chaturvedi (Dr. ) v. Dipali Sahu

2024-10-15

SANJEEV SACHDEVA, VINAY SARAF

body2024
ORDER Sachdeva, J. -- 1. Appellant impugns orders dated 30.4.2024 and 1.10.2021, whereby in an execution proceeding, employer of the appellant has been directed to furnish the income details of appellant to respondent. 2. Respondent had filed the subject execution seeking execution of the order of maintenance dated 4.3.2017 assessing interim maintenance under section 36 of the Special Marriage Act, 1954 (hereinafter referred to as "the Act") @ 6,000/- per month. 3. Contention of learned counsel for appellant is that the order passed under section 36 of the Act is not executable in terms of section 39A of the Act. He further submits that a sum of Rs.48,000/- has been deposited in the proceeding under the Domestic Violence Act and a sum of Rs.2,90,000/- was paid in cash to the respondent and she had not claimed adjustment on either of the said amount. 4. Appellant and respondent were married but on account of certain disputes they separated and have been living separately since February, 2016. Appellant filed a proceeding for divorce under the Act, in which, by order dated 4.3.2017 interim maintenance @ 6,000/- per month was fixed by the Court in exercise of powers under section 36 of the Act. Therefore, the petition filed by appellant was dismissed on 24.11.2022. On 24.11.2022, not only the petition for divorce filed by the appellant but the proceeding for restitution of conjugal rights filed by the respondent were also dismissed. In the meantime, appellant being aggrieved by order dated 4.3.2017 had filed Miscellaneous Petition being M.P.No.5583/2018 before this Court which was dismissed as withdrawn on 23.4.2024 noticing that the petition for divorce had already been dismissed. 5. As per the learned counsel for appellant the interim order of maintenance ceases to have effect after the dismissal of the petition filed by the appellant for divorce. He submits that in the appeal filed against the said order dismissing the divorce petition, no further order of maintenance has been passed. Learned counsel for appellant submits that respondent is also a qualified Doctor and is doing Private Practice and her income is infact more than that of the appellant and thus she is not entitled to any maintenance. 6. Learned counsel for appellant submits that respondent is also a qualified Doctor and is doing Private Practice and her income is infact more than that of the appellant and thus she is not entitled to any maintenance. 6. He further submits that no execution petition can lie for seeking enforcement of an order passed under section 36 of the Act for the reasons that section 39A of the Act providing for enforcement of orders passed by the Family Court under the Special Marriage Act, is restricted to the proceeding under Chapter V or VI of the Act and section 36 is contained in Chapter VII and as such an order passed under section 36 of the Act is not enforceable. 7. Reference may be had to section 36 of the Act which reads as under :-- "Alimony pendente lite.?Where in any proceeding under Chapter V or Chapter VI it appears to the district Court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as having regard to the husband’s income, it may seem to the Court to be reasonable." 8. Under section 36, in any proceedings under Chapter V or Chapter VI, if it appears to the District Court that the wife has no independent income sufficient for her support and necessary expenses of the proceeding, it may, on an application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly, during the proceeding such sum, keeping in view of the income of the husband, as it may seem reasonable to the Court. 9. In the instant case, appellant had filed the petitions under sections 23, 24, 25 and 27 of the Act, whereas the respondent had filed the petitions under section 22 of the Act. sections 22, 23, 24, 25 and 27 are contained in Chapters V and Chapter VI of the Act. 10. For appreciating the contention of learned counsel for appellant, that no proceeding for execution of an order passed under section 36 of the Act would lie. Reference may be had to the provisions of section 39A of the Act, which reads as under :-- "39A. 10. For appreciating the contention of learned counsel for appellant, that no proceeding for execution of an order passed under section 36 of the Act would lie. Reference may be had to the provisions of section 39A of the Act, which reads as under :-- "39A. Enforcement of decrees and orders.?All decrees and orders made by the Court in any proceeding under Chapter V or Chapter VI shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced." 11. Section 39A of the Act stipulates that all decrees or orders made by the Court in any proceedings under Chapter V or VI are to be enforced in a like manner as decrees or orders of a Court made in exercise of civil jurisdiction are enforced. Section 39A of the Act implies that all decrees or orders passed by the Court under the Special Marriage Act is to be enforced as if it were a decree passed by the Civil Court. 12. Contention of the learned counsel for appellant, that section 39A has no applicability to section 36 of the Act for the reasons that section 36 is contained in Chapter VII and section 39A applies only to Chapters V or VI, in our view, has no merit. section 36 stipulates filing of an application in a proceeding under Chapters V or VI. Section 39A relates to an enforcement of the decrees or orders passed in proceedings under Chapters V or VI of the Act. 13. An order passed on an application under section 36 of the Act, which is contained in Chapter VII, would be an order passed by the Court in a proceeding under Chapters V or VI for the reasons that section 36 has no independent existence. An application under section 36 of the Act can only be filed in a proceedings under Chapters V or VI and no application under section 36 of the Act would lie independent of proceedings under Chapters V or VI when an application under section 36 of the Act is filed in a proceedings under Chapter V or VI, the order on such an application, would be an order passed in proceedings under Chapter V or VI. Consequently, the order passed under section 36 of the Act would be enforceable in terms of section 39A of the Act. Thus, there is no merit in the said contention. 14. Coming to the contention of learned counsel for appellant that a sum of Rs.48,000/- has been deposited in the proceeding initiated by the respondent under the Domestic Violence Act. Learned counsel for appellant has produced photocopies of six receipts of depositing the amount of Rs.6,000/- per month in the said proceedings. Said receipts are taken on record. 15. Since the appellant has deposited a sum of Rs.48,000/- in the proceedings initiated by respondent under the Domestic Violence Act, appellant would be entitled to adjustment of the said amount as against the payment due in terms of order dated 4.3.2017. For the sake of completeness, we may note that the order of maintenance @ 8,000/- passed on 6.3.2017 in the proceeding initiated by the respondent under the Domestic Violence Act was ultimately set-aside by the appellate Court in the year 2017 itself. 16. The other contention of the learned counsel for appellant is that the appellant has also paid a sum of Rs.2,90,000/- to respondent which it is alleged is evident from the Bank statement of the respondent, wherein she has deposited said amount in cash. This contention does not merit any consideration. 17. Appellant relies on two bank deposits slips dated 11.11.2016 of Rs.1,50,000/- and dated 16.11.2016 of Rs.1,40,000/-. We note that the deposits were made in the bank accounts of the respondent which is a joint account with her mother prior to the passing of the order dated 4.3.2017. There is no material to show that this amount was paid by the appellant to the respondent in cash and then deposited by her in her account. Even if, it is assumed that the amount was paid by the appellant to the respondent, said amount was paid before the passing of the order dated 4.3.2017 and no credit for the same has been claimed by the appellant at the time of passing of the said order. Consequently, the payment, if any, made by the appellant to the respondent in cash which is unsubstantiated by any document, cannot be claimed by the appellant to his credit. 18. Consequently, the payment, if any, made by the appellant to the respondent in cash which is unsubstantiated by any document, cannot be claimed by the appellant to his credit. 18. Consequently, the only adjustment that the appellant can claim is of the said sum of Rs.48,000/- which lies deposited in the Court where the respondent had filed proceeding under the Domestic Violence Act. Learned counsel for the respondent submits that he has not received the amount from the Court. It would be open to the respondent to claim the said amount from the Court and said amount shall be adjusted from the amount due to the respondent in terms of order dated 4.3.2017. 19. Reliance placed by learned counsel for appellant on the judgment of the Co-ordinate Bench dated 28.11.2022 in F.A.No.995/2022 titled Neelendra Singh Pawar v. Deepti Pawar to contend that the amount payable by way of interim maintenance and litigation expenses is neither returnable nor recoverable after conclusion of the main proceedings, is misplaced. The contention in Neelendra Singh Pawar (supra), of the appellant husband therein was for recovery of the amount paid towards interim maintenance and returnability by the wife of the amount paid towards interim maintenance. The Court was not considering the issue with regard to the non-payment of the arrears of maintenance by the husband which was ordered by an interim order. 20. In the instant case, the order fixing interim maintenance was challenged by the appellant before this Court and the challenge was withdrawn. Consequently, the order was confirmed up to this Court and the amount was liable to be paid by the appellant. Mere fact that in the final order there is no direction fixing permanent or future maintenance would not absolve the appellant of his liability to pay the amount as directed by the interim order. There is no finding by the appellate Court that the amount was not payable to respondent. Infact the challenge of the appellant to the order fixing interim maintenance @ 6,000/- was unsuccessful. Consequently, the judgment in Neelendra Singh Pawar (supra), is not applicable to the case of the appellant. 21. We also find no merit in the contention of learned counsel for the appellant that the Execution Petition filed by the respondent was beyond time for the reasons that the same was filed on 1.10.2021 after a period of one year. Consequently, the judgment in Neelendra Singh Pawar (supra), is not applicable to the case of the appellant. 21. We also find no merit in the contention of learned counsel for the appellant that the Execution Petition filed by the respondent was beyond time for the reasons that the same was filed on 1.10.2021 after a period of one year. He further submits that respondents had filed two execution applications and one of the two was dismissed as withdrawn. We find no merit in the said contention of learned counsel for appellant. 22. Reference may be had to Article 136 of the Schedule of the Limitation Act, 1963, which prescribes for a period of 12 years for filing an application for execution. Since, the order of assessing maintenance was passed on 4.3.2017, the Execution Petition could have been filed within a period of 12 years. Even otherwise, the order of payment of maintenance is a recurring cause of action which accrues on month to month basis. Further reference may be had to the judgment of the Supreme Court in Shivashankar Prasad Shah v. Bainkunth Nath Singh, (1969) 1 SCC 718 and Bhagyoday Cooperative Bank Limited v. Ravindra Balkrishna Patel Deceased through His Legal Representatives and Others, (2022) 14 SCC 417 , wherein the Supreme Court has held a second application for execution to be maintainable even after dismissal of a first application where the first application was not decided on merits. 23. Section 11 Code of Civil Procedure which embodies the principles of Res judicata reads as under :-- "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I. The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II. For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation I. The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II. For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V. Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI. Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating . Explanation VII. The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII. An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised." 24. Section 11 of the CPC bars the Court from “trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties .... in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court". Explanation IV thereof codifies the principle of constructive res judicata. in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court". Explanation IV thereof codifies the principle of constructive res judicata. Explanation VII makes the provisions of section 11 of the CPC applicable inter alia to a proceeding for the execution of a decree. 25. Section 11 CPC bars a Court from trying of any claim or issue arising in trial of such claim. However, in an execution proceeding in so far as a decree holder is concerned, the Court is not trying any issue but is merely enforcing what has already been tried and adjudicated. The Executing Court is not to go behind the decree and determine, whether what has been allowed has been rightly and correctly allowed or not. A decree holder in an execution does not seek determination of any claim or issue and the role of the Executing Court as far as the decree holder is concerned, is to only verify that what is claimed is due. 26. In execution proceedings, judgment debtor or third parties may raise issues by filing their objections. If said issues and objections are decided by the executing Court, then to the decision on the objections and issues the principle of res judicata would apply. Reference may be had to the decision of the Delhi High Court in Siri Chand v. Union of India, 2019 SCC Online Del 7651. 27. In the instant case, as per the appellant, respondent had simultaneously filed two execution petitions and then had withdrawn one of the two, to pursue the second execution petition. Clearly, the first execution petition was not adjudicated on merits and no issue or objection raised therein was decided by the Court. Therefore, the second execution petition would not be barred by the principles of res judicata. Consequently, there is no merit in the said contentions of the learned counsel for appellant. 28. In view of above, we find no merit in the appeal. Accordingly, the same is dismissed.