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Judgments of Supreme Court of India and High Courts

Ramrao Ganpati Dhage vs Balwant Ramrao Dhage Minor Thro … on 12 December, 2019

(1) sa361.18

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) sa361.18

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) sa361.18

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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(4) sa361.18

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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(5) sa361.18

(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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(6) sa361.18

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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(7) sa361.18

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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