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HIGH COURT OF DELHI
MAT.APP.(F.C.) 155/2014
DEEPANJANA
Appellant
Through: Mr. V.K. Jain, Advocate
MAT.APP.(F.C.) 155/2014
DEEPANJANA
Appellant
Through: Mr. V.K. Jain, Advocate
VERSUS
YUDHVIR SINGH GARIYA Respondent
Through: None.
Through: None.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE LS.MEHTA
13.01.2015 C.M. Appl. No. 20350/2014 (condonation of delay)
By this application filed under Section 5 of the Limitation Act read with Section 151, CPC, the petitioner seeks condonation of delay of one day in filing the counter affidavit. For the reason stated in the application, the same is allowed and the delay of one day in filing the accompanying appeal is condoned.
Application stands disposed of MAT. APP. (F.C.) No.155/2015. C.M. AppI. No. 20349/2015 (interim relief) &
By this first appeal filed under Section 19 of the Family Courts Act, 1984 challenging the final order dated 1.10.2014 passed by the Principal
Judge, Family Court, Saket, NewDelhiin Ex.No. 58/2013.
2015:DHC:11650-DB V The grievance raised by the appellant is that she had filed the execution petition to seek execution of the order dated 7.1.2013, whereby the learned Family Court had awarded a sum of Rs.8,000/- per month in her favour and a sum of Rs.4,000/- per month in favour of the child towards their entire maintenance, effective from the date of filing of the execution and since the respondent -
HON'BLE MR. JUSTICE LS.MEHTA
13.01.2015 C.M. Appl. No. 20350/2014 (condonation of delay)
By this application filed under Section 5 of the Limitation Act read with Section 151, CPC, the petitioner seeks condonation of delay of one day in filing the counter affidavit. For the reason stated in the application, the same is allowed and the delay of one day in filing the accompanying appeal is condoned.
Application stands disposed of MAT. APP. (F.C.) No.155/2015. C.M. AppI. No. 20349/2015 (interim relief) &
By this first appeal filed under Section 19 of the Family Courts Act, 1984 challenging the final order dated 1.10.2014 passed by the Principal
Judge, Family Court, Saket, NewDelhiin Ex.No. 58/2013.
2015:DHC:11650-DB V The grievance raised by the appellant is that she had filed the execution petition to seek execution of the order dated 7.1.2013, whereby the learned Family Court had awarded a sum of Rs.8,000/- per month in her favour and a sum of Rs.4,000/- per month in favour of the child towards their entire maintenance, effective from the date of filing of the execution and since the respondent -
ORDER
debtor has failed to pay the arrears of the maintenance amount. The appellant had filed the execution petition No.
58/2013, but the learned Family Court failed to take notice of the arrears of maintenance amount which were accumulated during the pendency of the execution proceedings and disposed of the petition by the impugned order dated 1.10.2014 just on the payment of arrears of maintenance amount which were due and payable on the date offiling ofthe execution petition.
Mr. V.K. Jain, Advocate appearing on behalf of the appellant submits that the learned Executing Court has failed to appreciate that in the terms of order dated 7.1.2013, the respondent was required to pay a monthly maintenance amount on regular basis and once the arrears of maintenance fell due, during the pendency of the execution petition, the learned
Executing Court ought to have given direction to the judgment debtor to pay the entire arrears of maintenance amount till the date of disposal of the execution petition. The learned counsel for the appellant also submits that the denial of the said relief by the Executing Court to the appellant would lead to the multiplicity of litigation, as again the appellant will have to file another execution petition to seek execution ofthe said order dated 7.1.2013 for the further amount of arrears, which have fallen due during the pendency ofthe execution petition.
We have heard the submissions made by the learned counsel for the appellant and perused the contents ofthe present appeal.
We find considerable merit in the contentions raised by the learned counsel for the appellant. During the course ofhearing ofthe present appeal, the learned counsel for the appellant has apprised this court that the order dated 7.1.2013 is not under challenge in any appeal and the said order has attained finality.
Indisputably, the amount of entire maintenance was required to be paid by the judgment debtor month by month in terms of the order dated
7.1.2013 and having failed to do so, the respondent is certainly liable to pay the monthly maintenance amount to the appellant without committing any default. The learned Executing Court perhaps lost sight of the fact that on the date of the impugned order, the respondent - judgment debtor was in further arrears of maintenance amount and the said amount of arrears accumulated during the pendency of the execution petition andtherefore, the learned Executing Court ought to have given direction to the respondent - judgment debtor to have cleared the entire maintenance amount as on the date of disposal of the execution petition. Having not done so, we find it appropriate to remand this matter back to the learned Executing Court without directing any notice of this appeal to the respondent - judgment debtor and the Executing Court shall proceed in the execution proceeding further so as to ensure that thejudgment debtor pays the entire outstanding arrears of the maintenance amount to the appellant in terms of the order dated 7.1.2013. Necessarily, before passing any direction, the Executing
Court shall call for the other party in the matter. Appellant is directed to
3' appear before the learned Executing Court on 23'"'^ January 2015.
Withaforesaid directions, the present appeal alongwith application for seeking interim direction are disposed of
JANUARY 13,2015 pkb KAILASH GAMBHIR, J
58/2013, but the learned Family Court failed to take notice of the arrears of maintenance amount which were accumulated during the pendency of the execution proceedings and disposed of the petition by the impugned order dated 1.10.2014 just on the payment of arrears of maintenance amount which were due and payable on the date offiling ofthe execution petition.
Mr. V.K. Jain, Advocate appearing on behalf of the appellant submits that the learned Executing Court has failed to appreciate that in the terms of order dated 7.1.2013, the respondent was required to pay a monthly maintenance amount on regular basis and once the arrears of maintenance fell due, during the pendency of the execution petition, the learned
Executing Court ought to have given direction to the judgment debtor to pay the entire arrears of maintenance amount till the date of disposal of the execution petition. The learned counsel for the appellant also submits that the denial of the said relief by the Executing Court to the appellant would lead to the multiplicity of litigation, as again the appellant will have to file another execution petition to seek execution ofthe said order dated 7.1.2013 for the further amount of arrears, which have fallen due during the pendency ofthe execution petition.
We have heard the submissions made by the learned counsel for the appellant and perused the contents ofthe present appeal.
We find considerable merit in the contentions raised by the learned counsel for the appellant. During the course ofhearing ofthe present appeal, the learned counsel for the appellant has apprised this court that the order dated 7.1.2013 is not under challenge in any appeal and the said order has attained finality.
Indisputably, the amount of entire maintenance was required to be paid by the judgment debtor month by month in terms of the order dated
7.1.2013 and having failed to do so, the respondent is certainly liable to pay the monthly maintenance amount to the appellant without committing any default. The learned Executing Court perhaps lost sight of the fact that on the date of the impugned order, the respondent - judgment debtor was in further arrears of maintenance amount and the said amount of arrears accumulated during the pendency of the execution petition andtherefore, the learned Executing Court ought to have given direction to the respondent - judgment debtor to have cleared the entire maintenance amount as on the date of disposal of the execution petition. Having not done so, we find it appropriate to remand this matter back to the learned Executing Court without directing any notice of this appeal to the respondent - judgment debtor and the Executing Court shall proceed in the execution proceeding further so as to ensure that thejudgment debtor pays the entire outstanding arrears of the maintenance amount to the appellant in terms of the order dated 7.1.2013. Necessarily, before passing any direction, the Executing
Court shall call for the other party in the matter. Appellant is directed to
3' appear before the learned Executing Court on 23'"'^ January 2015.
Withaforesaid directions, the present appeal alongwith application for seeking interim direction are disposed of
JANUARY 13,2015 pkb KAILASH GAMBHIR, J