I am referring to another post..
Mr Neel ...please don't mind!!!...your case may be genuine...BUT I am also facing a similar situation but being on the Other side of the table. (There hasn't been any 'fraud on court'...but it is a deliberate delaying tactic by husband to avoid/delay maint in the garb of 'stay plea')
If anybody asks for stay on 'Maint Order'...............and that if it gets allowed then every judgement debter would start filing the 'fraud on court' cases!!! and delay/stop the payment!! What's the use?..............arrears would keep piling up!................Instead why not keep paying into court and parallelly also file 'fraud on court' if anyways they want to make that futile attempt?
Most of the women face 'stay of execution' of order passed in their favour...and they haplessly keep waiting to get their dues and suffer immensely.....What's the problem with you Guys.....Judgement-Debters? No woman would commit fraud on court if she is asking for 'maint for her livelihood'!!
Can any lawyer comment on this.....please!! Your expert comments could be useful to all women!
Please do NOT post any comments....... If your comment is NOT going to help wives but only to 'husbands trying to get away/avoid their maint obligations'
WORDINGS in Order 41 are Rule 5 (Stay by Appellate Court) sub rule 2...
(2) Stay by Court which passed the decree—Where an application is made for Stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
I am also asking a similar doubt...which was answered to me by an expert HC lawyer on LCI forum (although reply is discouraging to hapless female victims) as follows :-
A. What's Appealable decree as reffered in O41 R5?....it means that 'one can ask for redressal of decree if feeling aggrieved' and allows many modes of redressal such as ....
1. On 'point of law' at All competant upper jurisdictions (appeal-Dis Court,HC, revision-HC),
2. All competant upper jurisdictions including trial court (review and inherent jurisdiction,sec 151 - trial Court, Dis Court, HC),
3. Judicial review (HC)
and Hence it does not restrict aggrieved party only to point 1. above i.e. "On 'point of law' at upper hierarchy(appeal, revision)"
B. What's the term 'Appealling there from' as reffered in O41 R5?....it refers to a process to seek judicial examination and attempts by judgement-debter of decree and its redressal....and it does not mean 'memorandum of appeal against the decree'. Had it said ''memorandum of appeal' then automatically 'place' i.e. appelate jurisdiction would have come in..But subrule 2 heading is 'Stay by Court which passed the decree'
C. Provisions application for decress and applicable for Orders (section 36 of CPC)
AND THUS... Husband can apply for stay in the same Court!!...This is really unfortunate to wives!!
Although it is an opinion of an Expert lawyer and must be knowledgable and owing his practice in HC, I felt that it wasn't favourable to women and decree-holders in general and sounded like a far fetched interpretation ...Which HC expert lawyers skillfully do sometimes!!! and people like me would be speechless against such interpretations.
Please post your comments (Only if it is going to help female decree holders) as to...
How to counter such 'stay' applications filed in the SAME court, and also refer to clause O41 rule 5 subrule 2.
