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Smt. Prem Kusum Asthana vs Lalit Mohan on 4 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved On:- 23.01.2020

Pronounced On:- 04.02.2020

Court No. – 3

Case :- FIRST APPEAL FROM ORDER No. – 522 of 2019

Appellant :- Smt. Prem Kusum Asthana

Respondent :- Lalit Mohan

Counsel for Appellant :- Murli Manohar Srivastava

Counsel for Respondent :- Aproova Tewari

Hon’ble Ved Prakash Vaish, J.

Hon’ble Narendra Kumar Johari, J.

(Delivered by Hon’ble Ved Prakash Vaish, J.)

1. Heard Sri Murli Manohar Srivastava, learned counsel for the appellant and Sri Aproova Tewari, learned counsel for the respondent.

2. The appellant has assailed order dated 19th September, 2019 passed by learned Additional Principal Judge-V, Family Court, Lucknow in Civil Misc. Case No.5600001 of 2019 (Lalit Mohan vs. Prem Kusum Asthana), whereby the application under Section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”) filed by the respondent herein was allowed.

3. Briefly stating the facts as set out in the present appeal are that marriage between the appellant-Prem Kusum Asthana and the respondent-Lalit Mohan was solemnized on 11th December, 1998 as per Hindu Rites and Ceremonies; the appellant-Smt. Prem Kusum Asthana filed a Regular Suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as “the Act, 1956) bearing No.369 of 2001; the said petition was allowed and the respondent husband was directed to pay one third (1/3rd) of his salary vide judgment dated 06th August, 2001 passed by learned Additional Principal Judge, Family Court, Lucknow; the respondent-husband challenged the said judgment dated 06th August, 2001 by filing an appeal under Section 19 of the Family Courts Act, 1984 bearing First Appeal Defective No.01 of 2003; the said appeal was dismissed as not pressed on 08th September, 2016.

4. The appellant-wife filed a petition for divorce under Section 13 of the Hindu Marriage Act, bearing Suit No.408 of 2003, a decree of divorce was granted by Family Court, Lucknow on 01st September, 2005. The appellant also filed a case under Section 7(1)(c) of the Family Courts Act for recovery of articles as Suit No.370 of 2001. The respondent-husband also filed a petition for review of order dated 06th August, 2001.

5. The appellant-wife filed an execution of judgment and decree dated 06th August, 2001, bearing Execution Case No.06 of 2009; the respondent moved an application that the appellant has remarried, and therefore, the execution proceedings should be stayed; the said application was rejected by the Family Court, Lucknow vide order dated 04th September, 2012. Against the said order, the respondent filed an Appeal bearing No.1075 of 2012; the said appeal was dismissed as withdrawn on 06th September, 2016.

6. Thereafter, on 23rd January, 2017, the respondent husband filed a suit under Section 18(3) and Section 25 of the Act, 1956 with the prayer that order dated 06th August, 2001 passed in petition under Section 18 of the Act, 1956 may be set aside; which was registered as Misc. Case No.01 of 2017. During pendency of the said application under Section 18(3) and Section 25 of the Act, 1956, the respondent-Lalit Mohan filed a petition bearing Misc. Single No.23013 of 2017 (Lalit Mohan vs. Additional Principal Judge Family Court Lucknow and another) seeking directions to decide the application moved by the petitioner under Section 18(3) read with Section 25 of the Act, 1956; the said petition was disposed of by this Court vide order dated 21.09.2017 with a direction to the Additional Principal Judge, Family Court, Lucknow to decide the said application before proceeding with the Execution Case No.6 of 2001. An application for recall of order dated 21.09.2017, bearing C.M. Recall Application No.124894 of 2017 was filed, the said application was allowed on 12.01.2018. The petition bearing Misc. Single No.23013 of 2017 was disposed of with the direction to the petitioner to pay to respondent No.2 the same maintenance under the same arrangement as was being paid to her at the time of order dated 21.09.2017 was passed.

7. Thereafter, on 05.05.2018, respondent-Lalit Mohan moved an application under Order XXIII Rule 1 read with Section 151 of the C.P.C. for withdrawal of petition under Section 18(3) and Section 25 of the Act, 1956 bearing Case No.01 of 2017. The said application was moved by the appellant herein and the learned Additional Principal Judge, Family Court, vide order dated 19.05.2018 directed the respondent husband to pay arrears of maintenance. Again, the respondent-lalit Mohan moved an application dated 29.08.2019 under Order XXIII Rule 1 read with Section 151 of the C.P.C. for withdrawal of petition under Section 18(3) and Section 25 of the Act, 1956. Vide order dated 29.08.2019, the said application was allowed and the petition under Section 18(3) and Section 25 of the Act, 1956 bearing Misc. Case No.1 of 2017 was dismissed as not pressed.

8. The respondent-Lalit Mohan filed a petition bearing Misc. Single No.16578 of 2019 praying to set aside the proceedings of Execution Case No.06 of 2019 and restraining the respondents from deducting the salary of the petitioner towards payment of maintenance, the said petition was disposed of with liberty to the petitioner to file a fresh application under Section 47 of the C.P.C. vide order dated 31.07.2019.

9. Again, on 05.08.2019, respondent-Lalit Mohan filed a second application under Section 47 of the C.P.C. in application for execution of decree dated 06th August, 2001 on the ground that a decree of divorce was passed on 01.09.2005, and therefore, the appellant is not entitled to any maintenance after 01.09.2005, which was granted to her under Section 18(1) of the Act, 1956. The appellant contested the said application by filing reply on the grounds, inter alia, that the executing court cannot go behind the decree, the suit filed by respondent husband under Section 18(3) read with Section 25 of the Act, 1956 was dismissed on 29.08.2019, and therefore, the application under Section 47 of the C.P.C. is not maintainable.

10. Vide impugned order dated 19th September, 2019 passed by learned Additional Principal Judge, Family Court, Lucknow, application under Section 47 of the C.P.C. was allowed.

11. Aggrieved by the said order dated 19th September, 2019, the appellant-wife has preferred the present appeal.

12. Learned counsel for the appellant contended that the maintenance was awarded to the appellant under Section 18 of the Act, 1956 on 06th August, 2001; the respondent filed an objection under Section 47 of the C.P.C.; the executing court cannot go behind the decree and the executing court is bound by the decree.

13. On the other hand, learned counsel for the respondent submitted that the decree of divorce was passed on 01st September, 2005 and after passing of decree of divorce, the appellant-wife is not entitled to maintenance under Section 18 of the Act, 1956.

14. We have carefully considered the submissions made by learned counsel for both the parties. We have also carefully gone through the material available on record.

15. Section 18 and Section 25 of the Act, 1956 read as under:-

18. Maintenance of wife.–(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,–

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

25. Amount of maintenance may be altered on change of circumstances.–The amount of maintenance, whether fixed by a decree of court or by agreement either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.

16. Admittedly, the marriage between the appellant and the respondent was solemnized on 11th December, 1998, the appellant filed a petition under Section 18 of the Act, 1956 for grant of maintenance and vide judgment dated 06th August, 2001, the respondent was directed to pay one third (1/3rd) of his salary; the respondent filed an appeal against the said judgment dated 06th August, 2001, the said appeal was dismissed as not pressed on 08th September, 2016. It is not disputed that the respondent filed a suit under Section 18(3) and Section 25 of the Act, 1956 on 23rd January, 2017, the same was registered as Misc. Case No.01 of 2017 and the same was dismissed as not pressed vide order dated 29th August, 2019. It is also not disputed that a decree of divorce was passed on 01st September, 2005 in Suit No.408 of 2003. It is also not disputed that the appellant-wife filed an application for execution of decree dated 06th August, 2001, in the said execution application, the respondent-husband moved an application under Section 47 of the C.P.C., which was disposed of on 31.07.2019. Again, the respondent-husband filed an application under Section 47 of the C.P.C. and the said application was allowed vide impugned order dated 19.09.2019.

17. It is settled principle of law that executing court cannot go behind the decree and it must take the decree according to its tenor. There is a distinction between a decree passed by the Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree, which is passed illegally or irregularity of procedure, cannot be said to be in executable by the executing court.

18. A similar question came up for consideration before the Supreme Court in ‘Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others’, AIR 1970 SC 1475. In the said case, the appellant filed a suit for ejectment against the defendant/tenant in the court of small causes, Ahmedabad, the suit was decreed in his favour. During execution proceedings, the defendant/tenant raised an objection that the court of small causes had no jurisdiction to entertain the suit and its decree was a nullity. The executing court rejected the contention. The High Court reversed the order of small causes and dismissed the petition for execution. On appeal, the Hon’ble Supreme Court observed as under:-

“6. A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

8. In the present case the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the intepretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree. If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under S. 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.”

19. The aforesaid judgment in Vasudev Dhanjibhai Modi’s case (supra) was followed in case ‘Sneh Lata Goel vs. Pushplata and others’, (2019) 3 SCC 594. The aforesaid judgment in Vasudev Dhanjibhai Modi’s case (supra) was relied upon in another case ‘Rafoqie Bibi (Dead) By Lrs. vs. Sayed Waliuddin (Dead) By Lrs. and others’, (2004) 1 SCC 287.

20. Moreover, Section 18 of the Act, 1956 has made provision for the separate maintenance of wife. Section 25 of the said Act provides for alteration of the amount in certain circumstances. However, such an alteration would also include total quashing of the maintenance order, if the circumstances so exist the provision of Section 18 and Section 25 of Act, 1956 are similar to the provisions of Sections 125 and 127 of the Cr.P.C.. Section 127 of the Cr.P.C. provides a remedy for alteration of the maintenance order passed by a criminal court. Thus, on principal there cannot be any differnece between a order passed by criminal court under Section 125 of the Cr.P.C. and a decree by civil court.

21. Thus, it is clear that the decree of maintenance passed under Section 18 of the Act, 1956 can be altered or varied under Section 25 of the Act, 1956.

22. In the instant case, the decree under Section 18 of the Act, 1956 was passed on 06th August, 2001, the decree of divorce was granted on 01st September, 2005. The executing court cannot modify or alter the decree passed under Section 18 of the Act, 1956. The respondent can get the order modified under Section 25 of the Act, 1956.

23. At this juncture, it is relevant to mention here that the respondent husband moved an application under Section 18(3) and Section 25 of the Act, 1956 bearing Misc. Application No.01 of 2017 and the same was dismissed as not pressed vide order dated 29.08.2019.

24. Applying the law laid down in the aforesaid judgments, we are of the considered opinion that the executing court cannot alter or modify the decree passed under Section 18 of the Act, 1956.

25. As a result of above discussion, the appeal is allowed and impugned order dated 19th September, 2019 passed by learned Additional Principal Judge-V, Family Court, Lucknow, in Civil Misc. Case No.5600001 of 2019 is set aside.

26. No order as to costs.

27. Needless to mention here that this Court has not expressed any opinion on merits of the case and has set aside the impugned order only on the ground of jurisdiction of the executing court. The respondent husband is at liberty to move an application under Section 25 of the Act, 1956, if so advised.

28. Pending application, if any, stands disposed of.

29. Trial court record along with copy of this judgment be sent to the concerned trial court immediately.

.

(Narendra Kumar Johari) (Ved Prakash Vaish)

Judge Judge

Order Date :- 04th Feb., 2020

cks/-

 

 

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