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Ramaprasad Maity vs Mitra Maity & Anr on 30 November, 2018



Appellate Side


The Hon’ble Justice Jay Sengupta

C.R.R. 340 of 2018

Ramaprasad Maity


Mitra Maity Anr.

For the petitioner : Mr. Murari Mohan Das
Mr. Sk. Musior Rahman
Ms. Reshmi Rehman
….. Advocates
For the Opposite party : Ms. Rita Patra
For the State : Mr. Anirban Banerjee

Heard on : 04.09.2018 and 27.09.2018

Judgment on : 30.11.2018
Jay Sengupta, J.:


The petitioner has challenged an order dated 11.01.2018 passed by the

Learned Judicial Magistrate, 3rd Court, Diamond Harbour, South 24 Parganas in

M. Ex. Case No. 170 of 2016 on an application under Section 125 (3) of the Code

of Criminal Procedure, thereby rejecting the petitioner’s application and, inter

alia, holding that the execution case could not be dropped on the ground of

payment of alimony in a civil proceeding.

2. The Learned Advocate appearing on behalf of the petitioner submitted that

on 15.02.2006, the Learned Judicial Magistrate, 3rd Court, Diamond Harbour,

South 24 Parganas directed the present petitioner/husband to pay maintenance

allowance to the present opposite party/wife under Section 125 of the Code at

the rate of Rs. 1500/- per month in Case No. M. 363/99. According to the

Learned Advocate, this sum was enhanced from time to time, lastly to Rs. 4500/-

per month on 31.03.2010 in Misc. Case No. 2/2008. In the meantime the

husband filed a suit for divorce. On 14.03.2011 the petitioner was directed to pay

maintenance pendente lite under Section 24 of the Hindu Marriage Act to the

opposite party no. 2 at the rate of Rs. 5000/- per month along with a litigation

cost by the Learned Additional District Judge, 4th Court, Alipore, South 24

Parganas in Misc. Case No. 48 of 2008. The Learned Advocate contended that as

the Learned Civil Court granted such sum after recording that his wife was
already getting Rs. 4500/- per month as maintenance under Section 125 of the

Code, the two sums have to be adjusted and only the higher sum of Rs. 5000/-

per month shall be payable.

3. The Learned Advocate appearing on behalf of the opposite party/wife

submitted that Rs. 5000/- as maintenance pendente lite was to be paid in

addition to Rs. 4500/- payable under Section 125 of the Code per month. She

submitted that in any event, an execution Court cannot travel beyond the main


4. I have heard the submissions of the Learned Advocates for the parties and

have carefully perused the revisional application along with the annexure.

5. It further appears that on 08.11.2017 in Mat. Ex. Case No. 1/12 the

Learned Civil Court rejected a petition dated 24.09.2013 filed by the husband

holding that the order dated 14.03.2011 passed by that Court was very much

clear that the alimony order was passed excluding the maintenance awarded

under Section 125 of the Code. It does not appear that this order was reversed or

was even challenged by the present petitioner.

6. In the normal course, such sums awarded by orders passed independently

in different proceeding on maintenance are adjusted with each other. But, from a

careful reading of the order dated 14.03.2011 passed by the Learned Civil Court,
it appears that the order of maintenance pendente lite was indeed passed in

addition to the sum awarded under Section 125 of the Code.

7. In any event, an executing Court normally cannot travel beyond the order

passed by the original Court.

8. In view of the above, I do not find any illegality in the impugned order.

There is no merit in present revisional application and hence, the same is

dismissed. However, there shall be no order as to costs.

9. A copy of this judgment shall be sent forthwith to the Learned Court below

by Special Messenger.

10. Urgent photostat certified copies of this judgment may be delivered to the

learned Advocates for the parties, if applied for, upon compliance of all


(Jay Sengupta, J)

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