Cpc of execution petition in child visitation
ks
(Querist) 04 May 2022
This query is : Resolved
Dear Experts,
We filed execution petition under Order 21 Rule 11. Respondent filed reply tht this CPC is applicable for property related matters and cannot be applied in child custody matter. Can someone guide whether we are right or wrong ?
If any judgements of High Court or Supreme Court in GWA cases available where CPC is mentioned for execution then pls share the same.
Thanks.
kavksatyanarayana
(Expert) 04 May 2022
Yes. It does not relate to child visitation rights. You can file a petition in court for the visitation rights of your child. You can search on the indiankanoon.org site for judgments.
ks
(Querist) 05 May 2022
Dear kavksatyanarayanaji,
Already visitation right order is passed. I am asking for CPC of Execution petition, whether correct or not.
Advocate Bhartesh goyal
(Expert) 05 May 2022
Execution petition u/order 21 cpc is not maintainable for enforcement of child custody order.File petition u/sec 25 ( 1 ) Guardians and Wards Act for enforcement of order.Court will pass an order to arrest the person who disobeyed the court order and get delivered the child in custody of ward.
ks
(Querist) 06 May 2022
Dear Bharteshji,
Thanks for your reply. But section 25 will again create a new trail which clearly says "if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian" which is unwarranted as I am having final decree.
If GWA is Civil case and Order passed under civil case, there is no option in CPC to enforce decree ?
Dr J C Vashista
(Expert) 07 May 2022
Provision of Order XXI Rule 11 do not apply in a GWA case which reads:
"11. ORAL APPLICATION.
(1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court. "
Dr J C Vashista
(Expert) 07 May 2022
Refer to Madras High Court case
"Parvathammal vs Chokalinga Chetty on 26 April, 1917"
Equivalent citations: 41 Ind Cas 341
Author: Spencer
Bench: Spencer, S Aiyangar
JUDGMENT Case Note:
Civil Procedure Code (Act V of 1908), Section 2 (14) - "Order", meaning of--Guardians and Wards Act (VIII of 1890), Sections 31 (e), 36--Order passed against guardian under Section 34 (e) of Act, whether executable.
