Skip to content


V. Krishnaveni Vs. V. Narasingha Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 177 of 1981
Judge
Reported in1984(II)OLR838
ActsHindu Marriage Act, 1955 - Sections 24; Hindu Marriage (Amendment) Act, 1976 - Sections 28A; Limitation Act - Schedule - Article 136
AppellantV. Krishnaveni
RespondentV. Narasingha Rao and anr.
Appellant AdvocateA.S. Naidu, Adv.
Respondent AdvocateB.L.N. Swamy, Adv.
DispositionPetition allowed
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. .....the facts not disputed are stated in brief. the petitioner is the legally married wife of opposite party no. 1. she instituted original suit no. 1 of 1973 in the court of the subordinate judge, parlakhemundi, praying for judicial separation under section 10 of the act on the grounds of cruelty and adultery between opposite parties nos. land 2. during the pendency of the suit, she filed a petition under sac. 24 of the act registered as m. j. c, no. 46 of 1973 for pendents lite maintenance and expenses of the suit. by order dated 29. 11. 1972 the court below granted pendentelite maintenance at the rate of rs. 20/-per month and expenses of a sum of rs. 100/- in her favour. as opposite party no. 1 did not make any payment in obedience to the said order, the petitioner levied.....
Judgment:

K.P. Mohapatra, J.

1. This revision is directed against the order passed by the learned Subordinate Judge, Parlakhemundi on 15.12.1980 in M. J. C. No. 39 of 1979 refusing to execute an order dated 29.11.1972 under Section 24 of the Hindu Marriage Act (hereinafter referred to as the 'Act') passed in favour of the petitioner in Original Suit No. 1 of 1973 in which she prayed for a decree for judicial separation.

2. The facts not disputed are stated in brief. The petitioner is the legally married wife of opposite party No. 1. She instituted Original Suit No. 1 of 1973 in the Court of the Subordinate Judge, Parlakhemundi, praying for judicial separation under Section 10 of the Act on the grounds of cruelty and adultery between opposite parties Nos. land 2. During the pendency of the suit, she filed a petition under Sac. 24 of the Act registered as M. J. C, No. 46 of 1973 for pendents lite maintenance and expenses of the suit. By order dated 29. 11. 1972 the Court below granted pendentelite maintenance at the rate of Rs. 20/-per month and expenses of a sum of Rs. 100/- in her favour. As opposite party No. 1 did not make any payment in obedience to the said order, the petitioner levied execution in Execution Proceeding No. 2 of 1979 with a prayer for realisation of the arrear dues amounting to Rs. 1560/-by attachment, of the salary of opposite party No. 1. In the said execution proceeding, opposite party No. 1 filed an objection under Section 47 of the C. P. C, registered as M. J. C. No. 39 of 1979 inter alia contending therein that the order dated 29. 11 1972 was not executable because Original Suit No. 1 of 1973, in which the said order under Section 24 of the Act was passed, was no longer pending. The matter came up for hearing before the Court below' who, as already referred to above, refused to execute the order - after making the , following observation ;

'It transpires from the record that the decree holder obtained a decree from this Court for an interim maintenance of Rs.20/-p. m., from the judgment-debtor-O. P. from 2. 11. 19.97 u/s. 24 of the Hindu Marriage Act and at the rate of Rs.l00/- towards her litigation expenses in M. J. C. No. 46/73 u/s. 24 of the Hindu Marriage Act as an interim maintenance. Against the said order, the judgment-debtor-O. P. preferred an appeal. But subsequently he did not press for the said appeal. Hence it was dismissed as not pressed. At present the judgment-debtor-O. P. did not press for the decree. Now the decree-holder-petitioner has agitated the matter after a long lapse of five years and, slept, over the matter. Therefore, the present execution' petition which was filed after so many years is not maintainable since, the decree-holder-petitioner slept over the matter.'

3. Learned counsel appearing for the petitioner contended that an order passed under Section 24 'was enforceable in an execution proceeding under Section 28A of the Act. The order was enforced within 12 years of the date of passing thereof and accordingly the execution proceeding was within limitation under Art, 136 of the Limitation Act. Therefore, the learned Subordinate Judge committed a serious illegality in refusing to execute the order,. The contention has force.

4. On 29. 1972 in M. J. C. No. 46 of 1973, arising out of Original Suit No: 1 of 1973 between the parties an order was passed in favour of the petitioner and, against opposite party No. 1 for payment of 'pendente lite maintenance at the rate of Rs. 20/- per month and a sum of Rs. 100/- as expenses of the proceeding. In order to enforce the aforesaid order, the petitioner initiated Execution Proceeding No. 2 of 1979 on 25. 1.1979 praying for recovery of arrear dues amounting to Rs. 1560/- by attachment of the permissible extent of the salary of opposite party No. 1. In the original Act there was no provision for enforcement of decrees and orders made in any proceeding thereunder. Therefore, Section 28A was introduced by Act No. 68 of 1976 so as to provide a forum for enforcement of decrees and orders made under the Act. According to the provisions of Section 28A the petitioner initiated Execution Proceeding No. 2 of 1979 for enforcement of the order dated 29.11.1972 under Section 24 of the Act. Article 136 of the Limitation Act provides a limitation of twelve years for execution of any decree or order in any Civil Court when they become enforceable. The order under Section 24 of the Act became enforceable after passing thereof on 23. 11. 1972 and as Execution Proceeding No. 2 of 1979 was initiated on 25.1. 1979 within a period of twelve years, it was within limitation under Act. 136 of the Limitation Act. The learned Subordinate Judge did not keep himself abreast of the law and, therefore, committed a serious illegality in refusing to enforce the order under Section 24 of the Act. Therefore, the impugned order cannot be supported and must have to be set aside.

5. For the foregoing reasons, the Civil Revision is allowed with costs and the impugned order dated 15. 12. 1980 in Execution Proceeding No. 2 of 1979 is set aside. The execution proceeding shall continue in accordance with law.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //