Mahesh D. Yatnalli vs R. Sujatha @ Saraswathi

Lalitha Kanneganti, J

Aggrieved by the order passed in Execution Case No. 38/2024 dated 07.02.2025 by the III Addl. Family Court, Bengaluru, the father is before this Court.

In the order dated 07.02.2025, it is observed that the judgment debtor, the decree holder and the counsel present and filed P.F. with request for issue of warrant against judgment debtor through Commissioner of Police. The Court observes that in view of Section 56 of the CPC, the Court shall not order for the arrest or detention of a women in the Civil Prison in execution of the decree. Hence, prayer of the advocate for decree holder for issue of warrant against the judgment debtor through Commissioner of Police as prayed in the P.F. dated 07.02.2025 is rejected. Further, the Court observes that both the judgment debtor and the decree holder are directed to comply the terms of the decree passed in RPFC No. 104/2022. It is also observed that in spite of giving several opportunities, both the mother and father failed to comply the terms of the decree as well as the terms of the settlement arrived at between them during the pendency of the Execution Petition. Further, the act, behaviour and attitude of parties to the proceedings is affecting the activities of the child. Both the parties to the proceedings are trying to set their scores against each other using the child as pawn, which cannot be permitted. Welfare and well-being of the child is paramount and rights of the parties will not prevail over the welfare and well-being of the child. Hence, if the parties are not in a position to comply with the terms of the decree, both the parties are directed to take steps to put the child in the boarding school, both availing visitation rights to the child.

Learned Senior counsel appearing for the petitioner-father submits that when the compromise decree is violated, he has filed a contempt before this Court i.e., CCC No.203/2023 and that came to be disposed of by order dated 15.12.2023. The Contempt Petition is disposed of reserving liberty to the complainant to have recourse for the redressal elsewhere in accordance with law. Thereafter, he has moved this Execution Petition. Learned senior counsel submits that, when there is a violation of the order of the Court and that too in a compromised decree, the Court has to execute the same. Without executing the said order, the Court has passed an order that the child has to be admitted in the boarding school and both the parents have the visitation. It is submitted that as per the compromise, the father is entitled for the 75% of the custody during the visitation and in that regard, the order needs to be passed by this Court. It is submitted that Section 56 of CPC has no application in the facts of the case and it exclusively applies to the money decree.

Learned counsel appearing for the respondent - mother submits that there is violation of the compromise decree and the father himself has violated and he comes before the Court seeking execution of the same. However, he also submits that Court ought not to have passed an order directing the boy to be joined in the boarding school. It is submitted that it is not in the welfare of the child.

Having heard the learned Senior Counsel and the Counsel on either side, perused the material on record. When an order is passed, both the parties have to comply with the order of the Court and when the parties are not complying with the order passed by the Court and one of the parties approaches the Court seeking execution of the same, it is the bounden duty of the Court to execute the order and the Court cannot wait for the parties or request the parties to comply with the order. In this case, particularly in a case concerning a minor just because either of the parents have failed to comply with the order of the Court, the Court cannot pass an order directing the boy to be joined in the boarding school, which will definitely have an impact on the child. In the considered opinion of the Court, the order that is passed by the Court needs to be set aside. Further, once there is a compromise decree, question of again passing an order by this Court or clarifying the order earlier passed saying that the father has 75% of the Summer Vacation or the custody should be given to the father cannot be done in the writ petition filed under Article 227 of the Constitution of India. In the light of the above discussion, this Court is passing the following:

ORDER

i) The order dated 07.02.2025 passed in Execution Case No.38/2024 by the III Addl. Family Court, Bengaluru is set aside and the Executing Court shall ensure that the compromise order is complied with after considering the objections, if any, by the judgment debtor.

ii) Accordingly, the Writ Petition is disposed of.

iii) All IAs., in this petition shall stand closed.