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Vankar Kuber Jetha Vs. Vankar Lilaben Raja - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR584
AppellantVankar Kuber Jetha
RespondentVankar Lilaben Raja
Excerpt:
- - if a party against whom a decree for restitution of conjugal rights has been passed has had an opportunity of obeying the decree and had wilfully failed to obey it, it may be enforced by attachment of his property. a look at paragraph 4 at page 131 in the code of civil procedure by sir dinshaw mulla (thirteenth edition) would have also satisfied the learned judge that decree for restitution of conjugal rights cannot be executed by arresting the husband -the judgment-debtor. provided that such notice shall not be necessary if the court is satisfied, by affidavit, or otherwise, that with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court......payment of maintenance at the rate of rs. 20 3/- per month. the decree was passed by the learned civil judge (senior division) at palanpur. the husband has filed an appeal in the district court against that decree. it appears that he did not obtain any stay order from the district court. the wife, therefore, filed the execution proceedings in the court of the civil judge (senior division) at palanpur. in the execution petition, she only prayed for recovery of a sum of rs. 6,074. 88 p. which, according to her, became due and payable under the decree. she sought the assistance of the court in the matter of execution of the said part of the decree by arresting her husband and putting him in civil prison. she stated that the amount of maintenance necessary to be deposited for the civil.....
Judgment:

S.H. Sheth, J.

1. In a petition Tiled by this wife under Hindu Marriage Act for the restitution of conjugal rights, decree was passed against the husband for restitution of conjugal rights and for payment of maintenance at the rate of Rs. 20 3/- per month. The decree was passed by the learned Civil Judge (Senior Division) at Palanpur. The husband has filed an appeal in the District Court against that decree. It appears that he did not obtain any stay order from the District Court. The wife, therefore, filed the execution proceedings in the Court of the Civil Judge (Senior Division) at Palanpur. In the execution petition, she only prayed for recovery of a sum of Rs. 6,074. 88 p. which, according to her, became due and payable under the decree. She sought the assistance of the Court in the matter of execution of the said part of the decree by arresting her husband and putting him in civil prison. She stated that the amount of maintenance necessary to be deposited for the civil arrest of her husband was lying in Court in Regular Darkhast No. 10 of 1975. The present Darkhast is Regular Darkhast No. 65 of 1978. It was placed before the learned Judge on the same day and he made the following order:

Arrest warrant to issue as subsistence amount is already lying in Court.

It is this order which is challenged by the husband in this Civil Revision Application.

2. It appears that the learned trial Judge did not apply his mind to the relevant provisions of law. Nor did he think fit to issue a notice to the husband before ordering arrest warrant to issue. I may invite his attention to Order 21, Rule 32 of the Code of Civil Procedure. It provides, amongst others, the mode in which the decree for conjugal rights can be executed. If a party against whom a decree for restitution of conjugal rights has been passed has had an opportunity of obeying the decree and had wilfully failed to obey it, it may be enforced by attachment of his property. The only mode in which decree for restitution of conjugal rights can be enforced is by attaching the property of the judgment-debtor. If the learned Judge had looked at Sub-rule (1) of Rule 32 of Order 21, he would have realized that arrest warrant in case of execution of decree for conjugal rights cannot be issued. A look at paragraph 4 at page 131 in the Code of Civil Procedure by Sir Dinshaw Mulla (Thirteenth Edition) would have also satisfied the learned Judge that decree for restitution of conjugal rights cannot be executed by arresting the husband - the judgment-debtor.

3. However, in the instant case, all that the wife sought was the recovery of the maintenance amount and the cost which hid become due and payable. Order 21, Rule 30 provides for the mode of execution of a decree for payment of money. It reads as follows:

Every decree for the payment of money, including a decree far the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sib of his property, or by both.

Sub-rule (1) of Rule 37 of Order 21 provides as follows:

Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of name by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:

Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.

It is clear, therefore, that before a decree under which moneys are payable is executed by arresting the judgment-debtor and detainig him in civil prison, it is necessary under Order 21, Rule 37 to issue notice to him.

4. In the instant case, the learned Judge did not issue any notice to him. On the day on With the present darkhast was registered, he made an ex parte order issuing an arrest warrant as if issuance of arrest warrant can be ordered as a matter of course. The mandatory requirement of issuing notice to the judgment-debtor before an arrest warrant is issued can be dispensed with only if there is some evidence before the learned Judge showing that the judgment-debtor is likely to abscond or is likely to leave the local limits of the jurisdiction of the Court. In the instant case, there was no evidence, not even an affidavit of the decree-holder - wife - that the judgment-debtor - husband - was likely to abscond from or leave the local limits of the jurisdiction of the Court. Therefore, the learned Judge committed a material illegality affecting his jurisdiction when he ordered arrest warrant to issue without issuing any notice to the judgment-debtor - husband. The impugned order, is, therefore, liable to be set aside.

5. In the result, the Civil Revision Application is allowed and the impugned order is set side. The learned trial Judge shall issue notice to the judgment-debtor - husband - and after hearing him shall make an appropriate eider in the matter according to law. Rule is made absolute with no order as to costs.


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