Mst. Fahmeeda vs Ab. Rashid Zaindari

Mansoor Ahmad Mir, J.—Heard. The petitioner has assailed order-dated 27.10.2004 passed by Ld. First Additional Munsiff, Srinagar in

the execution petition titled Ab. Rasheed Zaindari v. Mst. Fehmeeda.

It appears that a decree for restitution of conjugal rights has been passed by 1st. Additional Munsiff Srinagar on 20.11.2002 in the suit titled Ab.

Rasheed Zaindari u. Mst Fehmeeda in file No. 26/N date of institution 3.5.2001 and date of decision 20th of Nov. 2002 and defendant No. 1,

petitioner herein, stands commanded to perform the marital relationship with the plaintiff and the plaintiff, respondent herein, stands directed to take

proper care of defendant No. 1.

In order to execute the said decree, the respondent has moved . execution petition before the executing court and the executing court has

passed the impugned order.Considered.

It is profitable to reproduce Order 21 Rule 32 sub clause (1) of CPC herein:-

Decree for specific performance, restitution of conjugal rights, or for an injunction- (1) Where the party against whom a decree for specific

performance of a contract, or restitution of conjugal rights, or for injunction, has been passed, has had an opportunity of obeying the decree and

has willfully failed to obeyed, the decree may be enforced in the case of a decree for restitution of conjugal rights, by the attachment of the

property or in the case of a decree for the specific performance of a contract or for injunction by his detention in the civil prison, or by the

attachment of his property, or by both.

This provision of law mandates that an opportunity is to be given to the judgment debtor in order to obey the decree and in case the judgment

debtor willfully fails to do so, the decree may be enforced by the attachment of the property.

This provision of law nowhere provides or mandates to ask police to execute the decree.

The executing court has vide impugned order asked the decree holder (respondent herein) to show the judgment and decree to the concerned

police and take assistance of the concerned police in order to execute the decree referred hereinabove.

The Order impugned passed by the Executing court is not in accordance with Order 21 Rule 32 sub clause (1) CPC. Thus, is illegal one. The

impugned order is not only illegal but is without jurisdiction and has caused miscarriage of justice.

In the given circumstances, the revision petition is allowed and impugned order is set aside. Executing court is directed to pass appropriate

orders warranted under the law and procedure in the execution petition after hearing the parties. The petitioner is directed to cause appearance

before the Executing court on 1st of March, 2005. Send down the record.

Disposed of accordingly.