Execution proceedings in a case u/s 125 of cr.p.c.
mohanlal
(Querist) 12 October 2013
This query is : Resolved
Complainant of a maintenance case u/s 125 of Cr.P.C. somehow managed to get a favourable order passed by suppression of important material facts and by playing fraud on the Court. The Opposite party had no knowledge about the said order passed.
For the execution of the said Order for attachments of salary and allowances of the opposite party, the Complainant moved an Application supported with a defective affidavit. In the said Affidavit the Complaint has not mention anything about the averments of the said Application whether those are true to her knowledge or based on records or belief to be true etc etc. She only mentioned in the Affidavit about the last paragraph of the Application where she made few submissions and prayers. Subsequently the said Application was allowed by the Principal Judge of the concerned Family Court.
Later on when the Opposite party came to know about the said Order of maintenance and the execution proceedings he filed a Revision Petition in the concerned High Court. On the date fixed for the payment of the maintenance in the Family Court, the Opposite party also moved an Application, inter alia, seeking a direction to the Complainant to file a proper Affidavit in respect of the Application seeking the execution of the Order of maintenance. The opposite party also brought into kind notice of the said Family Court that he has challenged the impugned maintenance Order in a Criminal Revision Petition in the concerned High Court. The Application of the Opposite Party is pending for hearing on the next date and the complainant’s copy of the said Application is duly served on her.
Since it is almost well settled proposition of law that the proceedings of the maintenance case under section 125 of Cr.P.C. is a Civil Proceeding.
NOW QUERIES:-
1. Whether it is mandatory on the part of the Complainant to file an Application supported with an valid and proper Affidavit seeking execution of the maintenance Order passed in her favour;
2. Whether once the principal Judge allowed the said Application of the Complainant, can she direct the complainant on prayer of the Opposite party to submit a proper and valid affidavit in respect of the said Application;
3. Whether the Opposite party is entitled to get the said relief from the said Principal Judge;
4. Whether in the said execution proceedings which deemed to be a Civil Proceeding, it is mandatory on the part of the Complainant to file Application with a proper and valid Affidavit;
5. In respect of the brief facts of the case aforementioned, Any other and further suggestions/advices to get full relief and justice to the opposite party in respect to said material illegality/irregularity and fraud;
Raj Kumar Makkad
(Expert) 12 October 2013
1. Yes.
2. It can.
3. Which one?
4. Yes.
5. You have not mentioned in your detailed query whether the proceeding were held ex-parte and whether the proper notice was made to the respondent/husband or not without which you cannot be advised in details. You have even not told in your query whether you obtained stay order against the execution petition from high court or not.
You need to obtain stay order from high court against the execution petition otherwise family court is bound to get its decree executed as per law.
mohanlal
(Querist) 12 October 2013
You have not mentioned in your detailed query whether the proceeding were held ex-parte
REPLY
IN THE ORDER, IT IS MENTIONED TWO TIMES THAT THAT THE PETITION FOR THE MAINTENEC IS ALLOWED ON CONTEST. NOWHERE WRITTEN IN THE ORDER THAT THE ORDER IS EX PARTE!
and whether the proper notice was made to the respondent/husband or not without which you cannot be advised in details.
REPLY
NOTICE WAS PEROPERLY RECEIVED BY THE OPPOSITE PARY AND HE ALSO SUBMITTED THE WRITTEN STATEMENT (WS) BUT AFTER THAT HE COULD NOT PARTICIPATE IN THE PROCEEDINGS BECAUSE OF SOME MISCOMMUNICATION BY ONE COUNSEL.
alsoYou have even not told in your query whether you obtained stay order against the execution petition from high court or not.
REPLY
NOT YET! HIGH COURT PLEASED TO ISSUE NOTICE RETURNABLE ON THE APPLICATION FOR THE CONDONATIO OF DELAY FILED WITH THE CRIMINAL REVISION PETITION. THE RETURNABLE DATE OF NOTICE IS FIXED ONE DAY BEFORE THE DATE OF PAYMENT IN FAMILY COURT.
You need to obtain stay order from high court against the execution petition otherwise family court is bound to get its decree executed as per law.
REPLY
HOW?
Devajyoti Barman
(Expert) 12 October 2013
No is the answer of all your queries raised here.
The technicality is no hindrance to the further proceeding of the case and you would only loose time by emphasising on the points raised here.
prabhakar singh
(Expert) 12 October 2013
Since order passed has been challenged by you in High court,unless you get an order of stay from the High court,the family court has right to proceed with execution,so being the position of law,queries raised by you are meaningless.
Rajendra K Goyal
(Expert) 12 October 2013
Well advised by the experts, nothing more to add.
Raj Kumar Makkad
(Expert) 13 October 2013
As your revision is delayed, high court has to deal this issue first and only thereafter if satisfied with the points raised therein, may stay part of the execution proceeding but executing court is not bound by your prayer in revision petition if no stay order is granted against the order/decree under execution.
