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Judgment
Arindam Sinha, J
Mr. M.Mishra, learned advocate appears on behalf of petitioner, who is husband. He submits, his client is aggrieved by order dated 15th November, 2021 made on petition dated 22nd March, 2021 of opposite party wife, to attach his client's monthly salary to the extent of Rs.50,000/- and direction for deposit of the same in the wife's account.
He relies on a doctrine pleaded by his client in paragraph 10 of the writ petition, reproduced below:
"That when the law provides to do certain thing in certain manner the same should be done in that manner only not in otherwise which has been done in this case. When certain provisions are there to do the work in that manner the same cannot be ignored. More over this petitioner has categorically said in his objection this was not the proper forum but the learned court below has not taken into consideration at the time of passing of the order which is not acceptable in the eye of law."
He submits, Code of Civil Procedure, 1908 has been made applicable to Hindu Marriage Act, 1955 but that does not mean garnishee proceeding can be commenced without launching of execution case. The Civil Procedure Code provides that execution can come after the decree. Here no execution case was filed but order made upon petitioner's employer for part attachment of salary and payment to opposite party no.1. He relies on views of a learned Single Judge of this Court in Ghasiram Das v. Arundhati Das, reported in AIR 1994 Orissa 15, paragraph 6, reproduced below:
"6. In my considered view, the Court can enforce its own order also by taking recourse to the aforesaid process in order to prevent the abuse of the process of court. In other words, the purpose of Section 28 of the Act should not be allowed to defeat by driving the indigent spouse to enforce the order in an execution proceeding in every case. The court in appropriate circumstance can enforce its order by striking out the pleadings as has been done in this case."
Mr.A.Mishra, learned advocate appears on behalf of opposite party wife and submits, the order made was for payment of maintenance pendente lite and expenses on proceeding under section 24 in Hindu Marriage Act, 1955. It was not an order that can be said to be a decree of payment of maintenance on disposal of the divorce suit. As such there is no question of requiring his client to file execution case, for execution of order under section 24. He submits, there should not be interference. He submits further, coordinate Bench rejected the same plea of petitioner in month of July, 2021 in W.P.(C) no.13800 of 2021. This has been suppressed. Mr. M.Mishra disputes his client had suppressed anything. On query from Court he submits, following the view his client's pleading could have been struck out but impugned direction could not have been made.
Section 21 provides for regulation, so far as may be, the proceeding under the Act by the Code of Civil Procedure, 1908. Section 28-A is reproduced below:
"28A Enforcement of decrees and orders. -All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction for the time being are enforced."
Section 28 provides for appeal for decrees and orders. As such, order made under section 24 is not appealable. We have already seen that section 28-A provides for enforcement of decrees and orders. This situation is not there as provided procedure under the Code. Mr.M.Mishra is correct to submit that there must be decree in a suit and thereafter execution.
As aforesaid, section 21 makes application of the Code, as far as may be in the facts and circumstances. Therefore, the procedure of execution is also to follow, to enforce an order made under section 24 because that is specifically provided in section 28-A. The petition of opposite party wife was duly considered to be for enforcement of the order made for maintenance pendente lite. As such, enforcement by garnishee proceeding is provided under order XXI in the Code.
View taken by this Bench is in addition to view taken in Ghasiram Das (supra). The writ petition is found to be without any merit and is dismissed.
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