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B.R.Shanmugam vs Lakshmi Shanmugam on 9 March, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 09.03.2017

ORDER RESERVED ON:11.01.2017

ORDER PRONOUNCED ON: 09.03.2017

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.R.P.(MD)No.478 of 2007
and
C.M.P.No.1 of 2007

B.R.Shanmugam … Petitioner

Vs.

Lakshmi Shanmugam … Respondent

This Civil Revision Petition has been filed under Section 115 of
Civil Procedure Code against the order of the Principal Subordinate Judge,
Thanjavur, made in E.P.No.134/97 in HMOP.No.254/91 dated 13.11.2006.

!For Petitioner :Mr.S.Vijayakumar

^For respondent :No appearance

:ORDER

This Civil Revision Petition has been filed against the order of
the Principal Subordinate Judge, Thanjavur, made in E.P.No.134/97 in
HMOP.No.254/91 dated 13.11.2006, whereby, the petition filed by the
respondent was allowed by the Court below. Aggrieved over the same, the
petitioner is before this Court.

2. The petitioner is the husband of the respondent herein and the
respondent herein had filed H.M.O.P.No.254 of 1991 before the Court below for
restitution of conjugal rights. The petitioner filed H.M.O.P.No.59 of 1992
on the file of the Sub-Court, Kumbakonam, for dissolution of marriage on the
ground of cruelty.

2.1 Both the cases were tried jointly and ultimately, the
respondent’s petition for restitution of conjugal rights was dismissed and
the petitioner’s petition for dissolution of marriage was allowed and
appeals were filed against the respective orders in CMA.Nos.17 and 18 of 1993
on the file of the District Court, Thanjavur and the same were also dismissed
against which, second appeals in C.M.A.SA.Nos.13 and 16 of 1993 were filed
by the respondent herein and the same were allowed on 13.09.1995.
Thereafter, the petitioner filed Special Leave Petition Nos.681 and 682
before the Hon’ble Supreme Court and the same were dismissed on 25.01.1996.
Consequently, the decree passed in favour of the restitution of conjugal
rights was confirmed.

2.2. It is the further case of the petitioner that though he
expressed his desire to join with the respondent, the respondent herein has
chosen to lodge a false compliant on the file of the XVII Metropolitan
Magistrate Court, Saidapet in C.C.No.4914/96 under Sections 498A and 406 IPC
and Section 4 of Dowry Prohibition Act by taking vindictive attitude against
the petitioner. The said compliant was quashed by this Court in
Crl.O.P.No.3328/98 dated 20.10.1998 with an observation that the compliant of
the respondent is nothing but a retaliation and the same is soaked in
vindictiveness.

2.3. After quashing of the Criminal Original Petition, the
petitioner choose to file H.M.O.P.No.90 of 2000 for divorce on the ground of
cruelty and the respondent herein has filed E.P.No.134 of 1997 for execution
of the decree of restitution of conjugal rights. Divorce petition was
dismissed against which the petitioner preferred C.M.A.No.5 of 2007. The
Executing Court passed an order directing the petitioner to pay a sum of
Rs.7,000/- per month and if he failed to do so, his salary was directed to
be attached. Against which, the present Civil Revision Petition has been
filed.

3. Originally, the matter came up for admission on 16.03.2007 and
at the request of the petitioner, it was adjourned to 21.03.2007 and when it
came up for hearing on the said date, the matter was admitted and an order of
interim stay was granted by this Court. Subsequently, when the matter came up
for hearing on 17.01.2017, the petitioner side appeared and sought time to
verify the present status and it was informed that in C.M.A.No.5 of 2007
divorce was granted to the petitioner on 22.09.2014 and though the case was
adjourned on various dates, in all these hearings, despite printing the name
of the respondent in the cause list, the respondent remained absent and she
neither appeared through her counsel nor in person and therefore, this Court
proceeded with the matter on the basis of the arguments advanced on behalf of
the petitioner as well as with the available records placed before it.

4. The petitioner has raised very many grounds in the Civil
Revision Petition to set aside the order made in E.P.No.134/97 in
HMOP.No.254/91 dated 13.11.2006. More particularly, he produced the divorce
order granted in C.M.A.No.5 of 2007 in favour of the petitioner and filed the
same by way of an additional typed set of papers and would state that
restitution of conjugal rights held against this petitioner has become
inexecutable. There is no compensation fixed by the Court and therefore, a
direction to pay Rs.7,000/- per month from the salary of the petitioner
should not have been done. To sum up, he would submit that the learned Judge
ought not to have travelled beyond the scope of the relief sought for by the
respondent.

5. On perusal of the records, it is seen that the petition for
execution petition has been filed under Order 21 Rule 32. The said section
is usefully extracted below for the purpose of deciding the issue in
question:-

Order 21 Rule 32: Decree for specific performance, for restitution of
conjugal rights, or for an injunction :-

(1) Where the party against whom a decree for the specific performance
of a contract, or for restitution of conjugal rights or for an injunction,
has been passed has had opportunity of obeying the decree and has wilfully
failed to obey it, the decree may be enforced [in the case of a decree for
restitution of conjugal rights by the attachment of his property or, in the
case of a decree for the specific performance of a contract or for an
injunction by his detention in the civil prison, or by the attachment of his
property, or by both.

……

(3)Where any attachment under sub-rule (1) or sub-rule (2) has remained
in force for [six months], if the judgment-debtor has not obeyed the decree
and the decree-holder has applied to have the attached property sold, such
property may be sold; and out of the proceeds the Court may award to the
decree-holder such compensation as it thinks fit, and shall pay the balance
(if any) to the judgment-debtor on his application.

….. ?

6. A categorical reading of the afore-said provision would
throw light upon to this Court, the Court has not followed the procedure as
contemplated under Order 21 Rule 32 and therefore, I have no hesitation to
hold that the order impugned in this Civil Revision Petition cannot be
sustained in the eye of law. Further, the interim order was granted at the
time of admission stage and now, the petitioner has produced the order
granted for divorce in C.M.A.No.5 of 2007 and as on today, the order passed
against this petitioner has become non-est in the eye of law. As stated
earlier, the respondent has also not appeared inspite of several
adjournments. When that being the factual position, this Court has no other
option but to allow this Civil Revision Petition.

J.NISHA BANU, J.

ssm
In fine, this Civil Revision Petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.

To

(i)The Principal Subordinate Judge,
Thanjavur.

(ii)The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai..

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