Sudeep Gupta (Manager) 20 May 2016

Power of execution court

This is regarding the recovery of Maintenance order issued u/s 24.

My wife had filed a 498a case against me and obtained X amount of maintenance order from Civil court u/s 24, stating that she is not having any source of income. I didnt paid her for last few years and now she has approached Execution court to reover the same from me. Mean time I am aquitted from 498a and also I got evidence that while the Order u/s 24 was passed, she was working with a MNC in Mumbai having salary close to Rs. 50,000/- that information she hide from court while hearing.

My query to the forum is -

1. Do Execution court have power to revert / set aside the order u/s 24, if it is brought to the notice that the order is obtained by misleading the court or by hiding the facts? The main ground was FIR u/s 498a and no income, both have proven false.

2. What is other way to counter the Execution court proceding?

3. I stay in Delhi and the maintenance orderr u/s 24 is passed by court in Mumbai, where can I file the appeal to set aside the maintenance order?

3. What other case I can file against her in Delhi?

4. Any other suggestion ?

Regards

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2 Replies

Rohit Subbayya (Advocate) 20 May 2016

1) Under Section 47 of CPC, the Executing Court can decide only matters relating to the execution of the decree and cannot traverse behind the decree - i.e., the Executing Court has the powers to remove obstacles for the execution of the decree, but however, it cannot travel beyond that and amend the decree on fresh evidence(as you did not have the evidence earlier). Hence the Executing Court cannot alter/revert/set aside the earlier decree.

2) An appeal can be filed against the order of the Civil Court before the appropriate appellate Court and you can seek for the stay of the trial Court orders.

3)Once a decree is passed by a Court in Mumbai, you have to contest in Mumbai itself unless you get an order from the Supreme Court for transferring the case to Delhi.

3) You can initiate a complaint against her for perjury(for giving false evidence) as she had not disclosed true facts at the time of giving evidence before the Trial Court

Sudeep Gupta (Manager) 23 May 2016

Thanks Mr. Rohit for advise.

I have another question that hit later to my mind, there was another order passerd by Criminal court u/s 125 against the same FIR. The order u/s 125 was passed 2 months before the order passed u/s 24. meantime she was alredy receiving the maintenance as per the order u/s 125 but she hide this information in petition u/s 24.

Referring the order passed by Delhi and Mumbai High courts under DV act in 2010, where they have ruled that the multiple maintenance orders are not valid if the order u/s 125 is already decided. May I use the same plea that since her petition u/s 125 had alredy been decided and she was receiving the maintenance as per the order, therefore the order u/s 24 (decided later) is not valid. thereforethe recovery application should be rejected.

Will this stand in execution court be OK?

Should the order passed by Mumbai and Delhi High courts under DV act, holds good in 498a case too?