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View the actual judgment from court
Bombay High Court
Ou vs H on 5 May, 2011
Bench: R.Y. Ganoo

:1: cwp-7932-09-Judgment=.doc USJ

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL WRIT PETITION NO. 7932 OF 2009 ou

Sou. Shantibai w/o Vithal Jadhav

Aged : 47 years, Occu. Houehold

R/o. Sherechiwadi, Tal. Phaltan

Dist. Satara .. Petitioner C

v/s.

Vitthal Ramchandra Jadhav

Aged : 54 years, Occu. Service,

h

Assistant Commissioner of Police,

Trombay Police Station

ig .. Respondent .........

H

Mr. R.R. Salvi i/b Smt. Suvarna B. Telgote for the petitioner None for the respondent

.........

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CORAM : R.Y.GANOO, J.

DATE : 5th MAY, 2011

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ORAL JUDGMENT :

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1. This Petition was admitted on 16th July, 2010. The Roznama shows that the respondent was present on 5th April, 2011. The matter was adjourned to 27th April, 2011 so that the respondent could remain B

present. On 27th April, 2011, respondent appeared, his advocate was absent. Out of indulgence, time was given to the respondent to arrange for his advocate or appear in person and the petition was adjourned to ::: Downloaded on - 09/06/2013 17:15:05 ::: :2: cwp-7932-09-Judgment=.doc 4th May, 2011. On 4th May, 2011 when the petition was taken up for final hearing, respondent was found to be absent though called out on rt

two occasions. Thereafter, I have heard learned Counsel Mr. Salvi on ou

behalf of the petitioner and the matter was adjourned to today to give last chance to the respondent to remain present. Today also the respondent has remained absent. I take it that the respondent is not C

interested in opposing this petition. It is in these circumstances, by this order the petition is being disposed of. h

2.

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The petitioner herein filed Hindu Marriage Petition No.131 of 2000 in the Court of learned Joint Civil Judge, Senior Division, Satara for H

divorce. The said petition was decided and by judgment and decree dated 20th September, 2004 the learned Joint Civil Judge, Senior y

Division, Satara decreed the said petition and dissolved the marriage ba

between the petitioner and the respondent. The learned Joint Civil Judge, Senior Division, Satara also ordered the respondent to pay to the petitioner permanent alimony of Rs.2,500/- per month from the date of om

the said Hindu Marriage Petition No.131 of 2000. The petitioner had filed Darkhast No.52 of 2005 to get maintenance as per the decree. B

3. The respondent was aggrieved by the aforesaid decree dated 20th September, 2004 and that is how he filed an Appeal in the District Court ::: Downloaded on - 09/06/2013 17:15:05 ::: :3: cwp-7932-09-Judgment=.doc at Satara. As he noticed that the institution of the said appeal was beyond the period of limitation, it became necessary for him to file an rt

application for condonation of delay in filing the said appeal. The ou

respondent, therefore, filed delay Application No.12 of 2006 praying that the delay occasioned in filing the appeal against the judgment and decree dated 20th September, 2004 be condoned. In this Delay C

Application No.12 of 2006 the respondent filed an application at Exh.5 praying for stay of the judgment and decree dated 20th September, h

2004. That application was decided by the learned Additional District ig

Judge, Satara by his order dated 30th June, 2006 and the learned District Judge directed that the execution of the judgment and decree dated H

20th September, 2004 should be stayed till the disposal of the delay application. That delay Application No.12 of 2006 was decided by the y

learned 2nd Additional District Judge, Satara by his order dated 23rd ba

August, 2006 and delay in filing the appeal was condoned and it was ordered that the appeal should be registered and numbered. It is the positive case of the petitioner that till today he has not received any om

notice from the appellate Court and according to him the order thereby staying the execution of the judgment and decree dated 20th B

September, 2004 passed on 13th July, 2006 came to an end on account of passing of order dated 23rd August, 2006. In view of this, the petitioner filed an Application at Exh.21 in the Court of learned 3rd Joint ::: Downloaded on - 09/06/2013 17:15:05 ::: :4: cwp-7932-09-Judgment=.doc Civil Judge, Senior Division, Satara being executing Court for execution of judgment and decree dated 20th September, 2004 praying that the rt

execution of the judgment and decree dated 20th September, 2004 be ou

taken up and appropriate orders as regards recovery of amount of maintenance from the salary of the respondent be passed. That application at Exh.21 was rejected by the learned 3rd Joint Civil Judge, C

Senior Division, Satara by his order dated 21st October, 2008. h

4. It is noted that the petitioner waited for some orders to be ig

received from the Appellate Court in regard to the Appeal which was filed by the respondent till about January, 2009. As the petitioner did H

not receive any orders from the Appellate Court, the petitioner reiterated her prayer for deduction of Rs.3,488/- from the salary of the y

respondent as and by way of execution of the judgment and decree ba

dated 20th September, 2004 through Execution Application No.52 of 2005. That application at Exh.35 was heard by the learned 3rd Joint Civil Judge, Senior Division, Satara. The said learned Judge by his order om

dated 16th June, 2009 rejected the said application at Exh.35. The petitioner has challenged these two orders namely order dated 21st B

Ocotber, 2008 dismissing Application at Exh.21 and order dated 16th June, 2009 dismissing application at Exh.35. ::: Downloaded on - 09/06/2013 17:15:05 ::: :5: cwp-7932-09-Judgment=.doc

5. I have heard learned Counsel Mr. Salvi on behalf of the petitioner. I have already indicated that the respondent remained absent. Hence, rt

there is no question of hearing of respondent. I have perused all the ou

record which was before the Court. Learned Counsel Mr. Salvi appearing on behalf of the petitioner submitted that two orders which are challenged in this petition are patently wrong. According to him, C

learned 3rd Joint Civil Judge, Senior Division, Satara failed to appreciate the effect of order dated 13th July, 2006 namely it was necessary for the h

learned 3rd Joint Civil Judge, Senior Division, Satara to know that the ig

execution of Judgment and Decree dated 20th September, 2004 was stayed "during the pendency of the application for condonation of H

delay". Learned Counsel Mr. Salvi drew my attention to the order dated 13th July, 2006 and in particular item no.2 of the operative part of y

the said order which runs as follows. ba

"The execution and operation of the impugned order dated 20-09-2004 in H.M.P. No.131/2000 is stayed during the om

pendency of this application for delay condonation on the following conditions".

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6. Learned Counsel Mr. Salvi had submitted that the respondent was directed to pay to the petitioner a sum of Rs.30,000/- and further continue to pay a sum of Rs.1,500/- regularly during the pendency of ::: Downloaded on - 09/06/2013 17:15:05 ::: :6: cwp-7932-09-Judgment=.doc the said application for condonation of delay i.e. Application No.12 of 2006. Learned Counsel Mr. Salvi had therefore submitted that when the rt

appeal was filed beyond the period of limitation, the application for ou

condonation of delay was taken up and the application at Exh.5 came to be decided and the judgment and order dated 20th September, 2004 was stayed during the pendency of disposal of the delay condonation C

application. Learned Counsel Mr. Salvi took me through the order dated 23rd August, 2006 passed by learned 2nd Addl. District Judge, Satara and h

pointed out that in the said order there is no reference to a stay being ig

granted till the disposal of the appeal. According to learned Counsel Mr. Salvi after the appeal was ordered to be numbered, if at all the H

respondent was interested in seeking the stay of judgment and decree dated 20th September, 2004, it was necessary for him to file an y

application for staying of the operation of the said judgment and decree ba

dated 20th September, 2004 in the appeal which got registered and the order dated 13th July, 2006 was limited upto disposal of the Delay Application No.12 of 2006.

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7. Learned Counsel Mr. Salvi took me through two orders dated 21st B

October, 2008 and 16th June, 2009 word by word and submitted that the learned 3rd Joint Civil Judge, Senior Division, Satara could not appreciate the point involved in the matter and he wrongly interpreted order dated ::: Downloaded on - 09/06/2013 17:15:05 ::: :7: cwp-7932-09-Judgment=.doc 13th August, 2006 as an order thereby staying the judgment and order dated 20th September, 2004 till disposal of the appeal. Learned rt

Counsel Mr. Salvi had taken pains to show as to how the learned 3rd ou

Joint Civil Judge, Senior Division, Satara misconstrued the whole litigation and declined to grant relief to the petitioner in regard to Applications at Exh.21 and Exh.35 though the petitioner was entitled to C

have decree dated 20th September, 2004 duly executed pursuant to Execution Application No.52 of 2005. Learned Counsel Mr. Salvi h

therefore submitted that the orders dated 21st October, 2008 and 16th ig

June, 2009 be set aside and Applications at Exh.21 and Exh.35 be granted and the said Court be directed to pass appropriate orders to H

enable the petitioner to get maintenance as per judgment and decree dated 20th September, 2004.

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8. I have perused the orders passed which are referred to above. I am in complete agreement with the submissions advanced by learned Counsel Mr. Salvi. Learned 3rd Joint Civil Judge, Senior Division, Satara om

failed to appreciate that the order passed during the pendency of delay condonation application would not operate in appeal proceedings. He B

failed to appreciate that it was necessary for the respondent to file separate interim application in appeal proceedings ordered to be registered to obtain stay of decree dated 20th September, 2004. ::: Downloaded on - 09/06/2013 17:15:05 ::: :8: cwp-7932-09-Judgment=.doc Learned 3rd Joint Civil Judge, Senior Division, Satara appears to have been totally confused and failed to appreciate the distinction between rt

the events which take place during the pendency of Application for ou

condonation of delay in final proceedings and events which take place or which may take place after such delay is condoned. The view taken by the learned 3rd Joint Civil Judge, Senior Division, Satara while passing C

the impugned orders is wrong and the impugned orders are required to be set aside. The petitioner has suffered injustice on account of these h

two orders. In the normal course, without there being any stay after ig

order dated 23rd August, 2006 the petitioner was entitled to execute the decree. On account of two aforesaid orders the petitioner could not H

execute the decree and recover the maintenance, which she was otherwise entitled to get pursuant to judgment and decree dated 20th y

September, 2004.

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9. The statement made by learned Counsel Mr. Salvi that as of today the petitioner has not received any notice of admission of the appeal om

said to have been filed by the respondent challenging judgment and decree dated 20th September, 2004 is noted. He made further B

statement that no other order is received in the said appeal is noted. In the wake of this statement the petitioner would be free to execute judgment and decree dated 20th September, 2004 on the strength of ::: Downloaded on - 09/06/2013 17:15:05 ::: :9: cwp-7932-09-Judgment=.doc Execution Application No.52 of 2005 as I propose to grant applications at Exh.21 and Exh.35.

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10. In view of the aforesaid discussion, this petition is being disposed of by passing following order.

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ORDER

(i) Order dated 21st October, 2010 passed below Exh.21 in Reglar h

Darkhast No.52 of 2005 by learned 3rd Joint Civil Judge, Senior ig

Division, Satara is set aside. Similarly, order dated 16th June, 2009 passed below Exh.35 in Regular Darkhast No.52 of 2005 by H

learned 3rd Joint Civil Judge, Senior Division, Satara is set aside. (ii) Exh.21 and Exh.35 in Regular Darkhast No.52 of 2005 are y

granted. Learned Civil Judge, Senior Division, Satara before ba

whom Regular Darkhast No.52 of 2005 is said to be pending shall pass orders to execute judgment and decree dated 20th September, 2004 in accordance with the provisions of law. om

(iii) In the facts and circumstances, there shall be no order as to costs.

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(R.Y.GANOO, J.)

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