Desh Raj vs Bimla Devi

Tarlok Singh Chauhan, J.—This Petition under Section 115 of the Code of Civil Procedure is directed against the order passed by the executing court whereby it allowed the execution petition and issued warrants of recovery against the petitioner. The petitioner is further aggrieved by the order dated 15.1.2015 passed by learned Addl. District Judge, Hamirpur before whom he had assailed the order passed by the executing court in appeal under Section 96 of CPC and withdrew the same on the question of jurisdiction.

The respondent filed execution petition seeking execution of decree passed in her favour on 15.2.2002 in proceedings arising out of Section 13 of Hindu Marriage Act. The petitioner appears to have initially been awarded a maintenance allowance of Rs. 800/- per month but the same on appeal was reduced by the appellate authority to Rs. 700/-. By way of execution, she had claimed maintenance amount of Rs. 8400/- for the period from 17.1.2013 to 16.1.2014. The petitioner though filed objections but the same do not make any head or tail as would be apparent from the later part of the discussion.

The learned executing court dismissed the objection and allowed the execution petition by issuing warrant of recovery to the Collector, District Hamirpur for effecting recovery of the amount due from the property of the petitioner. The petitioner, for some strange reasons, challenged this order before the learned Addl. District Judge that too in proceedings under Section 96 of CPC. The office raised objection regarding jurisdiction of the court to entertain the appeal, on the basis of which, counsel for the petitioner withdrew the appeal and preferred this revision petition.

It is strenuously argued by Sh. Arjun K. Lall, Advocate that the learned executing court has fallen in error by not taking into consideration that the respondent had earlier filed execution petition and claimed maintenance allowance Rs. 700/- per month w.e.f. 26.8.1995 to 25.8.2007 wherein the total amount of arrears was shown to be Rs. 1,08,000/-. Thereafter, respondent filed amended execution petition and further claimed a sum of Rs. 1,35,100/- upto 9.12.2011. The petitioner, in pursuance to the execution petition, paid a sum of Rs. 1,41,000/- towards maintenance upto 31.8.2012 which meant that he had already paid the advance maintenance of nine months. Therefore, in such circumstances, learned executing court was required to deduct the maintenance for these nine months and only thereafter alone could have proceeded to pass the impugned orders.

I have heard the learned counsel for the parties and have gone through the records of the case.

Before proceeding any further in the matter, it would be worthwhile to notice the precise defence set out by the petitioner in his reply/objection to the execution petition, which reads thus:

"Preliminary objections:

That the execution petition is not maintainable in the present form, because the petitioner has already taken the maintenance allowance which she has claimed.

That the petitioner is stooped from fling the present petition by her act and conduct.

That on 25.8.2012 the petitioner has taken the maintenance allowance upto 31.8.2012, but she claimed again from July 2012 by concealing the material facts.

ON MERITS

That the petitioner have taken the maintenance allowance w.e.f. 5.8.1995 to 5.8.2007 of Rs. 1,00,800/- and thereafter claimed from 5.8.2007 to November 2011, i.e. Rs. 1,35,100/- totaling upto 29.11.2011 and petitioner has also taken/claimed maintenance amount upto 25.8.2012 i.e. Rs. 1,41,400/- and the whole payment was made to the petitioner.

That the respondent has paid Rs. 2400/- vide petition No. 2/1999 on 7.6.2002 and Rs. 2400/- vide petition No. 23-IV-2000 on 19.11.2001 and Rs. 2400/- vide petition No. 6/2 on 2.3.2005 and Rs. 2400/- vide execution petition No. 7/2004 on 4.9.2004 and the petitioner has also taken the maintenance amount from 1995-1998 and they have also against claimed vide their amended petition on 29.10.2007 and thereafter.

That the petitioner has filed this petition just to harass the respondent time and again.

It is, therefore, prayed that the petition of the petitioner may kindly be dismissed in the interest of justice."

It would be evident from the aforesaid reply that the contentions as now raised before the court, in fact, were never raised before the executing court and, therefore, in my humble and considered opinion, these grounds are not available to the petitioner. It is well settled law that the that parties are expected to raise specific pleadings before the first forum for adjudication of the dispute. Those pleadings are the basis of the case of the respective parties even before the appellate/higher Courts. The parties would be bound by such pleadings, of course, subject to the right of amendment allowed in accordance with law. Therefore, no illegality, irregularity, impropriety or perversity can be found in the order passed by the learned executing court and the same is accordingly upheld.

Now adverting to the order passed by the learned Addl. District Judge on 15.1.2015, which too has been assailed before this court, I really find no reason as to how the same can be assailed by the petitioner. It would be noticed that it was the petitioner himself who choose a wrong remedy by filing an appeal that too under section 96 of CPC before the learned Addl. District Judge and when objection to this effect was raised by the office, he conveniently withdrew the same. It is apt to reproduce the impugned order which reads thus:

"15.1.2015 Present: Sh. K.D. Sharma, Adv vice counsel for appellant.

Office report seen. Its perusal shows that the case is not within the jurisdiction of this court. Statement of Ld. Counsel recorded. As per his statement he withdrawn the present case within the request to return the documents which are certified copies.

In these circumstances, the present case is dismissed as withdrawn and ordered to return the certified documents after retaining photocopies of the same against proper receipt It is consigned to record room after its due completion."

The petitioner having chosen a wrong remedy cannot find fault with the orders of the learned appellate court.

In view of the aforesaid discussion, there is no merit in this petition and the same is accordingly dismissed, leaving the parties to bear the costs.