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Anupam Kumar Basu vs Joyshree Basu on 19 November, 2019

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IN THE HIGH COURT AT CALCUTTA
19-11-2019

Civil Revisional Jurisdiction
Subrata
C.O.No.2923 of 2019
Anupam Kumar Basu

-vs-

Joyshree Basu

Mr. Debasish Mitra …for the petitioner

Mr. Apratim Bhattacharjee
Mr. Arpan Guha …for the opposite party

This is an application under SectionArticle 227 of the
Constitution of India challenging an order dated June 15,
2019 passed by learned Additional District Judge, 3rd
Court at Alipore in Mat. Execution Case No.37 of 2018
arising out of Misc. Case No.39 of 2012 in connection
with Matrimonial Suit No.78 of 2012.

At the outset, it must be recorded that learned
advocate for the petitioner submitted that a copy of this
revisional application has been served on the opposite
party by relying upon some documents showing that an
article was sent by speed post, and that the tracking
report showed that the article had been received on
November 14, 2019. However, learned advocate for the
opposite party-wife submitted that this revisional
application was not sent for service, but that he received
a copy of the restoration application with an application
for condonation of delay in respect of another revisional
application.

Be that as it may, in view of the order which I
propose to pass, perhaps the non-service of the revisional
application, in defiance of the order of the co-ordinate
Bench passed on September 9, 2019, would become
academic.

The case is as follows. The petitioner is the
husband of the opposite party. He filed a suit for
dissolution of marriage under Sectionsection 13 of the Hindu
Marriage Act, 1955. During the pendency of the suit the
wife-opposite party applied under Sectionsection 24 of the 1955
Act for maintenance of her minor son and herself.

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Learned court below, on February 20, 2017, by its order
allowed the said petition and directed the petitioner to
pay to his wife the monthly maintenance pendente lite of
Rs.50,000 with the litigation costs of Rs.30,000. Even
though the petitioner challenged this order by filing an
application for revision and/or under SectionArticle 227 before
this court, the same was dismissed for default. Though
an application for restoration, which was a time-barred
one for which a Sectionsection 5 Limitation Act application was
taken out, was filed, this means that in the eye of law
there is no application for restoration, since the
condonation of delay application has not been allowed.

Thereafter, the wife moved a petition dated March
26, 2019 praying for an order upon the employer of her
husband for payment of the arrears of maintenance in
favour of her by way of deduction from the salary of the
petitioner herein. To this, learned court below came to a
finding that the wife had been paid Rs.4,40,000 for the
period from March 2017 to November 2018 along with
the litigation costs of Rs.30,000 and recorded a finding
that the total amount payable at the time of filing of the
execution case was Rs.4,70,000. On this basis, learned
court below directed the husband’s employer – Magma
Fincorp Limited – to deduct Rs.40,000 from the salary of
the petitioner and send it to the opposite party at the cost
of the petitioner with effect from June 2019 till the
arrears of Rs.4,70,000 was wiped out.

Be it mentioned, there is a finding in Misc. Case
No.39 of 2012 that the salary of the petitioner is
Rs.2,02,000 when he was working as a project manager
with Lbvantage Solutions Pvt. Ltd. and on that basis the
present opposite party had claimed Rs.65,000 for herself
and her son as monthly alimony pendente lite along with
the litigation costs of Rs.20,000.

I am told that in the application for condonation
of delay the present petitioner has alleged that he is
working as an associate vice-president of Magma Fincorp
Limited and learned advocate for the opposite party
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submits from the website of the said Magma Company
that the salary of the petitioner is Rs.4,00,000 p.m.

Be that as it may, it is clear that the petitioner is
a man of means. It further appears that by professional
engagement the petitioner is habitually travelling abroad,
including the USA. Learned court below has recorded in
its order dated February 20, 2017 that though the
petitioner had not disclosed his monthly or yearly
income, in his objection, there is no specific denial of the
amount of monthly income of Rs.2,02,000 per month.
This finding is not in the eye of law under challenge
today. It is on that basis that learned court below had
directed payment of Rs.25,000 p.m. each to the petitioner
and the minor son as monthly maintenance. Therefore,
there are materials on record which support the
conclusion which the executing court has given and
which is sought to be enforced by the impugned order.

Learned advocate for the petitioner raises a
question that no opportunity of hearing was given to his
client before the order was passed. Unfortunately, the
order dated February 20, 2017 appears to have been put
into execution within two years from date of passing and
that is why three orders had been passed therein in Mat
Execution Case No.37 of 2018 before the impugned order
was passed. 2018 is within two years of the date of
passing of the order dated February 20, 2017. Therefore,
under the Code of Civil Procedure, 1908 which is the
applicable proceedings under the SectionHindu Marriage Act,
1955, the petitioner as the judgment-debtor had no right
to a notice; and since the order dated February 20, 2017
was not under challenge, in the eye of law I find that
there was nothing to prevent learned executing court
from proceeding as it did.

In such view of the matter, I find no merits in this
SectionArticle 227 petition and I am not agree with the prima
facie opinion which was formed by the co-ordinate Bench
when the matter was first moved.

Accordingly, the revisional application stands
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dismissed. No costs.

Certified website copy of this order, if applied for,
shall be given to the parties.

[Protik Prokash Banerjee, J]

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