Muniji Singh vs Smt. Kalawati

M. Wahajuddin, J.—The applicant has come forward with a prayer that the orders dated 28-5--1982 and 23-10-1982 of the Magistrate both be quashed. The prayer has been opposed by the Respondent. The Respondent ''s counsel did not appear at the time of hearing. I have considered the application, affidavit and the annexures in support as well as the counter affidavit and rejoinder affidavit. It would appear that the Magistrate passed a maintenance decree on 7-2-1978 in favour of the opposite party in pursuance of a compromise Annexure I. The opposite party later moved an application on 10-9-1979 for execution and realisation of the maintenance amount due under the order. The applicant, who is husband, then filed an application dated 11-9-79 before the Magistrate stating that the applicant did not receive any process and the entire proceedings have been behind his back. Thereafter, another application was filed on 14-10-79. In that application in paragraph 3 it was stated that the compromise that was entered into between the husband and the wife contained a condition that the wife will remain at her parents place in Barwa District Chhapra and the husband will send a sum of Rs. 100/- as stipulated in the compromise there. It was further stated that the husband actually remitted the maintenance allowance due for March 1978 to the wife in April 1978 and the receipt of the wife acknowledging this payment was received on 5-4-1978. It is further stated in paragraph 5 that on 30-5-1975 again maintenance allowance was sent per M.O. and the husband has the receipt. In paragraph 8 of this application it was further stated that the wife is of immoral character and as per compromise she on her own wish left her husband and she remarried so she is not entitled to any maintenance and her application for realisation of the maintenance amount may be dismissed. Curiously enough much later on 1-4-1980 a third application was preferred by the husband making a complete somersault. In that application it was stated that he did not enter into any compromise and some imposter was made to sign the compromise on his behalf. In his statement in the present proceeding before the trial court the applicant appeard in witness box and in cross-examination admitted that the aforesaid application dated 24-10-1979 containing the aforesaid admission bears his signature and he had filed the same after going through its contents and understanding them. It is strange that now this application u/s 482 Code of Criminal Procedure is filed urging that the applicant had no knowledge of the maintenance proceeding nor was he a party to the compromise nor did the compromise bear his signature. Powers u/s 482 Code of Criminal Procedure are exercised to prevent abuse of the process of law and not to encourage such process. There can not be a greater abuse of the process of law than, inspite of detailed admission concerning entering into compromise and acting upon it, to now come forward and urge that the decree is ex-parte, that the applicant had no knowledge of the proceeding, that the compromise was signed by any imposter. In fact, this conduct of the applicant deserves severe condemnation. It is strange that the applicant has dared to make such averments inspite of very clear proof. Reliance was placed upon the case of National Insurance Co. Ltd., Kanpur Vs. Yogendra Nath Verma and Others, . The facts of that case are totally different and the observation made that the claimant should have proved that the driver had no licence by leading independent evidence was again made in a totally different context. In the present case there is a compromise recorded by the Court passing a decree on the basis of that compromise. In this background it is not the other party who had to prove the authenticity and genuineness of such compromise. It is the person who alleges that the compromise has been signed by an imposter, that he is not signatory to the compromise has to prove these averments. So the burden of proof lay upon the applicant and when that is the position his admission would be read and taken into consideration as is laid down under the provisions of Sections 17 to 21 of the Indian Evidence Act dealing with the matter of admission. The application of the applicant should have been rejected outright simply on the face of the very pleas in his application to which I have referred. I may also mention that if the stand of the applicant was that the entire earlier proceedings were behind his back without proper service etc. the remedy under the law was to move an application u/s 126(3) Code of Criminal Procedure taking a stand that in fact the decree is an exparte decree and it may be set aside. The applicant was also in such situation bound to show that he has come forward within three months of the knowledge of such decree. It is noteworthy that in his first application aforesaid he does net state when did he come to know of the decree. It is therefore certain that actually inspite of the compromise concerning maintenance payble to the wife of the applicant, he is avoiding payment and trying to defeat the decree by wrong stands while he cannot be permitted to do so.

The next point urged is that there was a plea of adulteration. It is further urged that this matter could be considered u/s 125(4) Code of Criminal Procedure. I have considered that argument and I do not find any force in it. The maintenance has been allowed in pursuance of the compromise entered into between the parties. When that is the position the plea of adultery open at that time also cannot be urged during execution. In any case if any subsequent adultery is alleged after the passing of the decree there should be a fresh application u/s 127 Code of Criminal Procedure and the matter could not be considered in course of execution of the maintenance decree as such.

The result is that I do not find any force in the application u/s 482 Code of Criminal Procedure and This Court will not exercise its inherent powers in favour of the applicant. The application is rejected.