Rajendra Kumar vs Amita

R.D. Shukla, J.—This revision is directed against the order dt. 2-5-92 of the Addl. Judge to the Court of District Judge, Ujjain, passed in execution proceedings of Case No. 12-A/91, whereby the execution of the decree of restitution of congugal rights in favour of the applicant-husband has been refused.

The brief history of the case is that the applicant husband obtained a decree of restitution of conjugal rights vide decree dated 29-1-91, passed in Civil Suit No. 12-A/91 he filed an application for execution. It appears that the learned Judge on a query from the Counsel for the Judgment Debtor and believing the statement of the Counsel that Non-applicant-wife is not ready to go alongwith the applicant, dismissed the application.

In the opinion of this Court that is not the proper procedure of dealing with the execution of decree of restitution of conjugal rights. The Order 21 Rule 32 C.P.C. provides that if a J.D. has willingly fail to obey the decree, the property of the J.D. can be attached. As a matter procedure firstly a warrant directing the Non-applicant wife ought to have been issued asking her to comply with the decree and live with the applicant-husband. Her refusal if any ought to have been noted in the warrant and thereafter if the Court finds it fit the order for the attachment of the property could be made, but this procedure has not been adopted in this case and thereby an illegality is committed by the learned Trial Court while passing the order.

This revision petition is, therefore, accepted. The order of Execution Court is set aside and it is directed that the execution proceedings shall be revived and it will be proceeded as per the provisions of Order 21, Rule 32 C.P.C. In the facts and circumstances of the case parties shall bear their own costs.