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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.361 OF 2018
WITH CA/6668/2018 IN SA/361/2018
RAMRAO GANPATI DHAGE
VERSUS
BALWANT RAMRAO DHAGE MINOR THRO GUARDIAN MOTHER-SARITA
AND OTHERS
Mr. Anil M. Gaikwad, Advocate for the appellant.
CORAM : S.M.GAVHANE,J.
DATED : 12.12.2019
P.C. :-
1. The appellant/original defendant No.1 has filed
this Second Appeal aggrieved by judgment and decree dated
09.02.2017 passed by the District Judge-1, Kandhar in RCA
No.15 of 2011, filed by respondent Nos.1 and 2/original
plaintiffs allowing said appeal thereby setting aside
order dated 15.01.2010 in RCS No.77 of 2009 rejecting
maintenance to respondent No.2 – wife of the appellant
and awarding her monthly maintenance of Rs.4,000/- from
the date of suit i.e. 17.08.2009 with directions to keep
charge of said maintenance amount on the share of the
appellant in the lands mentioned in the order.
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2. It appears that respondent Nos.1 and 2 had filed
aforementioned suit for maintenance as per the provisions
of the Hindu Adoption and SectionMaintenance Act, 1956 in the
Court of CJJD, Loha against present appellant and
respondent Nos. 3 and 4 – father and brother of the
appellant on 17.08.2009. Said suit proceeded ex-parte
against them as per order dated 18.12.2009. Ultimately,
after considering the evidence adduced by respondent Nos.
1 and 2/original plaintiffs, suit was partly decreed.
The claim for maintenance of respondent No.2 wife was
rejected and her son – respondent No.1 was granted
monthly maintenance of Rs.3000/-. As no maintenance was
granted to wife, respondent Nos. 1 and 2 filed RCA No.15
of 2011. After hearing counsel for the parties, the
Appellate Court allowed the appeal and granted
maintenance to respondent No.2 – wife by judgment and
decree under challenge in this Second Appeal, as stated
earlier.
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3. Admittedly, appellant did not challenge the
decree passed in the suit by filing the appeal before the
Appellate Court. It appears that after the decree in
suit on 15.01.2010 the appellant and present respondent
Nos.3 and 4 filed Misc. Application RJE No.17 of 2017
before the CJJD, Kandhar under Order 9 Rule 13 of CPC for
setting aside ex-parte decree. As submitted by learned
counsel appearing for the appellant, said application is
still pending and present respondent Nos.1 and 2 have
appeared in the said application.
4. Learned counsel appearing for the appellant –
husband submitted that in the appeal filed by respondent
Nos.1 and 2 bearing RCA No.15 of 2011, the appellant
filed copy of Misc. Application under Order 9 Rule 13 of
CPC and it was brought to the notice of the Appellate
Court that said application is pending and request was
made in said application to set aside the ex-parte decree
of maintenance passed against the appellant. According to
learned counsel for the appellant, in such circumstances,
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the Appellate Court was expected to either wait till
decision of the said application or the Appellate Court
should have remanded the matter to the Trial Court with
liberty to the appellant to raise his defence by filing
written statement or to adduce evidence. But, the
Appellate Court did not do the same. It is also
submitted that from the pleadings of respondent Nos.1 and
2 in the suit itself, it is clear that respondent No.2 is
second wife of the appellant. Therefore, according to
learned counsel when the marriage of respondent No.2 is
contrary to the provisions of Sectionsection 5 of the Hindu
Marriage Act, she is not entitled to maintenance. It is
submitted that in the above circumstances, the
substantial questions of law as per ground Nos.3,4 and 6
are arising in this appeal. Said grounds are thus :-
(i) Whether the Appellate Court below has
committed error of law in proceeding with the
hearing of the Appeal as it was pointed out that
decree assailed before it is an ex-parte decree
and the proceeding under Order 9 Rule 13 has
been filed and pending before the trial court
for setting aside ex-parte decree against which
the appeal is preferred?
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(ii) Whether the Appellate court below has
committed error of law in decreeing the suit in
entirety in view of the fact the decree was ex-
parte and proceeding for setting aside the
decree is pending before the trial court?
(iii) Whether the Appellate court below has
committed error of law in decreeing the entire
suit and the court ought to have remanded the
suit in view of the fact that the decree is ex-
parte and appropriate proceeding is also filed?
5. Considering the submissions of the learned
counsel appearing for the appellant, it appears that the
suit filed by respondent Nos.1 and 2 for maintenance was
partly decreed and maintenance to respondent No.2 – wife
was rejected. Aggrieved by said decision, both these
respondents have filed RCA No.15 of 2011 and said appeal
was allowed and maintenance as said earlier was granted
to wife also by the Appellate Court. It is seen that the
fact of filing of application under Order 9 Rule 13 of
CPC was brought to the notice of Appellate Court and copy
of Misc. Application pending in this respect before the
trial Court was produced. It appears that the Trial Court
did not consider the aspect of pendency of said
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application for setting aside ex-parte decree.
Therefore, the appeal needs to be admitted for the
substantial questions of law referred earlier.
6. Admit.
7. Issue notice to respondent Nos.1 and 2,
returnable on 27.01.2020.
8. Issue notice to respondent Nos. 1 and 2 in Civil
Application No. 6668 of 2018, returnable on 27.01.2020.
Learned Counsel for the applicant/appellant submitted
that respondent wife has filed execution petition for
recovery of maintenance amount on the basis of decisions
in suit and appeal. Warrant of attachment is issued and
therefore some interim relief may be granted. It is
submitted that the wife has filed execution petition for
recovery of Rs.4 lakhs and odd amount.
9. Considering the submissions of learned Counsel
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for the appellant, the execution of decree in RCS No.77
of 2009 and RCA No.15 of 2011 is stayed till 27.01.2020
on appellant depositing an amount of Rs.2,00,000/-
(Rupees Two Lakhs) in the executing Court till
27.01.2020.
10. Private notice and Hamdust allowed.
[S.M.GAVHANE,J.]
snk/2019/dec19/sa361.18
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