neel (self) 07 January 2011

help! Wanna stay execution of Interim Maintenanace 24 of HMA

Sep-2010: maint app filed by wife sec 24 HMA, wife is petitioner in main suit of divorce on cruelty.

Dec-2010: order passed in wife’s favour to pay 12k for wife and kid (5k+7k for kid)

I am a judgement-debter and she decree/order holder.

Dec-2010: After that, I also got a new evidence that wife has put her money in FDs in Nov-10, (A person praying to be 'needy and starving for food, money' shouldn't be seen making FDs in banks, and that too during pendency of 'maint. trial' and also shouldn't also get caught afterwards. It is even more severe offense, if it was found that way, after the 'trial and order is passed' )

Dec-2010: On 30-december-2010, I was to file an application for 'nullity of order' owing to 'fraud on court' using sec 151 of CPC r/w contempt of courts act and also contemplating to file review by 10th jan2011.

I couldn't file it on 20-dec-2010 , although I went for hearing, but court was on leave on year end.

I did file it on yesterday's hearing.

Jan-2011: But other party got to know about it in Dec-2010, and now her lawyer strongly asked the judge for payment of arrears on yesterday.

Hence judge didn’t look at my application of ‘fraud on cour to avail relief’ and to set-aside the interim maint app (which is not a final order and changeable also) under sec 151 r/w contempt of courts act.

And asked me to pay all arrears first.

So I somehow managed to pay (first time after order in Dec-2010, after 32 day) around 11000/- out of 75k as arrears

(12k x 5 = 60k upto Jan2011 + 15 k as costs)

Judge took undertaking from me and I gave it that "I would pay ‘BY CASH’ before 15-Jan-2011"

Wife’s lawyer declined my offer, in front of judge, to pay in wife’s a/c directly within a weeks time by cheque/DD in bank but demaned cash only (she just wanted to harrase me.)

Has this happened in any cout before?

I need help!!!!

I want to file ‘stay on execution' of maint order saying that I have given the amount as security (and have not kept any doubt also by giving cheque and possibility whether it gets bounced or not).

It would be difficult for me to recover money from her, I am going to borow money to do the needful and its not a 'free money' which I can't be expected to write-it-off (if she withdraws money from court) and also she may drag the proceedings and I would end up paying maint, even though she has my money invested in her name.

When she withdraws money from court, Am I not supposed to be acknowledged/intimated about it?

Please help me on supporting citations and exact clauses in CPC and order. 'Stay on execution' by same court is possible, HC can’t stay generally (this is my understanding)

I didn’t know whether she filed execution petition for maint (her lawyer asked about it verbally on yesterday)

I am fighting my case on my own. Wife’s cruelty plea (and fake incidents in it) is really humorous!! She knows I was very attached to my daughter, and because of this I am already suffering from low BP.

Order says arrears to be paid in 3 months (i.e by March-2011)

Still her lawyer pressed for her demand to pay arrears, she wanted to kill time.

Until 11-january-2011, I have time to go for review in the same court (or 11-MArch-2011 for revision in HC)

Please help me with remedy on ‘how to stay execution of maint’ as well as 'Review'

Please guide me.

Reply Follow

5 Replies

Tajobsindia (Senior Partner ) 07 January 2011

@ Author,

1. Once a JD accepts to pay part thereof or full arrears on Execution petition then the superior Court reluctantly sees the merits in review

2. You should not have paid even 11 K when knowledge of FD's as one of the grounds for going in for review was within your special knowledge.

Above two paras being besides the infrence you should now appeal against the lower court Order on S. 24 HMA and meanwhile ask for stay of maint. proceedings in trial court. However, guess says HC will ask you to meet half of the arrears amount for which you should resist pleading that the purpose of paying even half will defeat the very purpose I have approached you !

Can you now do above !!!!

I am omitting replying to emotions and sentiments paras of your as they have no basis before eyes of Law when a husband is contesting the maint and or divorce suits so no point shedding such common template tears before higher forum. Go by pure Law points "wife's abilitiy to maintain" that is all you will suceed.

All the best.

neel (self) 07 January 2011

You opinion would help me, about what type of confusing plea that could be made by other aprty.

You are right 'HC will ask you to meet half of the arrears amount for which you should resist pleading that the purpose of paying even half will defeat the very purpose I have approached you!'

Same money is asked by the trial court judge at family court and I did it by borrowing money from relatives so that my patition of fraud and hence nullity of order be heard. Money borrowed is not a free money and it doesn't signify anything other than my hardship. It doesn't condone wife's fraud as can not hide miscarriage of justice on me.

There are many citations which say, law can't thought to be powerless to correct miscarriage of justice.

I hope I am correct to ask for stay after payment of arrears vide O21 rule 29 and there is provision of R 26 also where court doesn't need to record the reason for stay if plea is strong in merits.

Please advise accordingly.

Now I have paid and partially and also going pay all arrears in court (and going to have debt on my head), Please advise me correct steps which may help me in Family court.

At last anyways I going to knock the door of writ in HC.