Delhi District Court
Mr Vikram vs Smt Suman on 8 April, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. Rev. No. 138 of 2023
CNR No. : DLST01-004875-2023
MR. VIKRAM
S/O SATBIR
R/O PLOT NO. 136 & 137
GALI NO. 20, GAUTAM COLONY
NARELA DELHI-110040 .......REVISIONIST
VERSUS
SMT. SUMAN
W/O SH. VIKRAM
D/O SH. ANAND PAL
R/O H. NO. 97, VILLAGE NANGLI
POONA, DELHI-110036 ..... RESPONDENT
DATE OF INSTITUTION : 24.05.2023
ARGUMENTS HEARD ON : 10.01.2024
DATE OF JUDGMENT : 08.04.2024
JUDGMENT
1. By this judgment, I shall decide the present appeal filed under section 29 of the Protection of Women from Domestic Violence Act, 2005(hereinafter referred as "DV Act") against the impugned order dated 16.02.2023, passed by Ld. Trial court in Ex. Crl. No. 223/2022, titled as 'Suman Vs. Vikram Phogat',
2. Brief facts giving rise to this appeal are that a complaint under section 12 of Domestic Violence Act was filed by Digitally signed by respondent/wife Suman in the year 2016-2017, claiming PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.04.08 17:20:41 various reliefs including maintenance. The interim +0530 CA No. 138/2023 Vikram vs Suman Page 1 of 9 application for grant of relief of interim maintenance was allowed by the Trial Court vide order dated 21.01.2019, awarding a sum of Rs.10,000/- per month (Rs. 4000/- to wife of appellant, Rs. 4000 to minor son and Rs. 2000/- as rent).
3. Respondent filed execution petition bearing no. 65/2019 claiming an amount of Rs. 2,40,000/- as arrears in which Rs. 1,24,000/- has been received by the respondent and petition is still pending. During the pendency of execution petition no. 65/2019, another execution petition No. Ex. Crl. 223/2022 was filed on 17.09.2022, claiming arrear of Rs. 4,40,000/- for the period from 16.03.2019 to 15.08.2022. Notice was issued on this execution petition and both the parties appeared before the court on 06.10.2022.
4. The respondent did not object the execution petition No. 223/2022 on 06.10.2022 when it was listed along with execution petition no. 65/2019. The only plea taken by Ld. Counsel for the appellant, when he was asked to make the payment was that he could not make the payment of arrears as JD was not present before the Hon'ble High Court on 01.12.2022. Ld. Trial Court, after hearing the parties on both the execution petitions passed the following order:-
"Exemption application has been moved on behalf of JD stating that he is unwell which is allowed for today. PURSHOTTAM PATHAK It is further argued by the Ld. Counsel for JD that the matter Digitally signed is pending before Hon'ble High Court of Delhi. Per contra it is by PURSHOTTAM PATHAK submitted by Ld. Counsel for DH that JD was directed by Hon'ble Date: 2024.04.08 17:21:10 +0530 CA No. 138/2023 Vikram vs Suman Page 2 of 9 High Court of Delhi to pay remaining arrears to DH, however, despite orders, JD has not paid any payment to DH. Ld. Counsel for JD submits repeatedly that the matter was listed before Hon'ble High Court of Delhi on 27.09.2022 wherein JD wanted to make payments to DH, however, DH did not appear before Hon'ble High Court on aforesaid date, that is why JD could not make payment and matter was adjourned for 01.12.2022. JD is not making any payment to the DH today as well. There is no stay on payment of interim maintenance. The undersigned even tried to pursuade Ld. Counsel for JD to make payment before this Court, however, Ld. Counsel for JD is adamant that he shall make payments only before Hon'ble High Court of Delhi.
There are two execution petitions pending and an arrear to the tune of more than Rs. 6,00,000/- has accrued upon JD. Considering the over all facts and circumstances, issue warrants of attachment of movable properties of JD on filing of PF by the DH. It is also interesting to see that warrants of attachment issued on last date of hearing returned back unexcuted with the report that the JD is not residing at the given address, to this Ld. Counsel for JD submits that JD resides in rented accommodation in Badarpur. Ld. Counsel for JD undertakes to file complete address within two days from today".
5. Thereafter on 16.02.2023 JD appeared along with his counsel and the Ld. Trial Court passed the following directions:-
"The present execution has been filed for an arrear of Rs. 4 lakhs approximately. JD is directed to pay at least Rs. 1 lakh to D.H by next date of hearing. JD is directed to deposit the said amount directly into the bank account of DH. DH is directed to provide his PURSHOTTAM PATHAK bank details to JD today itself. JD is directed to remain present on the next date of hearing."Digitally signed by PURSHOTTAM PATHAK Date: 2024.04.08 17:21:27 +0530 CA No. 138/2023 Vikram vs Suman Page 3 of 9
6. Being aggrieved by the order dated 16.02.2023, the present appeal has been filed on following grounds:-
i. that the Ld. MM has passed the impugned order without reading and perusing the petition correctly and carefully.
ii. that the Ld. MM has failed to appreciate that the arrears from 16.03.2019 to 15.03.2020, from 16.04.2020 to 16.03.2021 and 16.04.2021 to 16.07.2022 are not recoverable as they are time barred.
iii. that the impugned order is illegal as the same has been passed without condoning the delay and the Ld. MM has erred in not recalling and appreciating the law of limitation .
iv. that the Ld. MM has failed to appreciate that any document filed or relied upon by any party can not be used against the opposite party until the copy of the same is supplied.
v. that the impugned order passed by Ld. MM is wholly illegal, incorrect and lacks propriety as it has been passed casually without application of judicial mind.
7. Ld. Counsel for the appellant in addition to above grounds argued that the Ld. Trial Court has passed the impugned order, without condoning the delay, on an execution PURSHOTTAM PATHAK petition filed beyond period of limitation and also without passing an order to supply the copy of the execution Digitally signed by petition to the petitioner/ JD.Hence, the same is liable to PURSHOTTAM PATHAK be set-aside. Ld. Counsel for appellant in support of his Date: 2024.04.08 17:21:34 +0530 CA No. 138/2023 Vikram vs Suman Page 4 of 9 contentions has relied upon judgments:- B. G. Shivananjappa Vs Shantha alias Ushadvey and Anr 2004 CRI. L.J. 2455, Sardar Beg Sahib vs Sidhani Bi 1987, CRI L.J. 1779 and Vasu Bajaj Vs. Rakesh Bajaj 2023 SCC DEL 5124.
8. Ld. Counsel for respondent has argued that the order passed by Ld. Trial court is well reasoned and no ground for setting aside the same is made out. He submitted that the Appeal filed by the appellant is without merits and same is liable to be dismissed.
9. TCR was called and the same has been perused.
10. I have heard arguments advanced by Ld. counsels for both the parties.
11. The first and foremost contention of Ld. Counsel for appellant is that he had not received the copy of execution petition and document. However, perusal of record shows that no such submission was made by the Ld. counsel for the appellant, when he appeared on notice before the Ld. Trial Court on 06.10.2022. Even on the next date of hearing i.e. 06.12.2023 and thereafter on 16.02.2023, the date of impugned order, the appellant never asked for copy of petition. This plea has been taken for the first time in PURSHOTTAM appeal. Hence, there is no force in the contentions of Ld. PATHAK Counsel that the order was passed without supplying the copy of petition/documents. The Trial Court has rightly Digitally signed by passed the order on the execution petition as the contents PURSHOTTAM PATHAK Date: 2024.04.08 of petition were well within the knowledge of appellant 17:21:43 +0530 CA No. 138/2023 Vikram vs Suman Page 5 of 9 that the execution petition has been filed for recovery of arrears.
12. Another contention of appellant is that the respondent cannot claim arrears of maintenance beyond a period of one year u/s 125 (3) of Cr.P.C. as same being barred by limitation. In the present case execution petition number 65/2019 was filed within a period of one year. As only part amount was paid by the appellant to the respondent even after directions of Hon'ble High Court, the respondent filed the execution petition no. 223/2022 for recovery of arrears upto that date. Ld. Counsel has not brought on record any order of Hon'ble High Court to show that there was any directions from Hon'ble High Court to deposit the arrears in the High Court only and not before the Trial Court. There was also no stay on proceedings in execution petitions before Trial Court. The execution petition number 223/2022 was filed during the pendency of execution petition no. 65/19, which was filed within one year and was kept pending. The purpose of petition no. 223/2022 was only to mention the amount due till date and that is why the trial court passed a common order in both the petitions instead of treating them separate. Therefore, the bar under Section 125 Cr.P.C cannot be applied in the given facts. The appellant has failed to comply the order dated 21.01.2019 which was obligatory on his part to make the payment. In a case of non-compliance, when the PURSHOTTAM PATHAK order is not set-aside or stayed, magistrate is not required to wait for execution petition for compliance of court Digitally signed by PURSHOTTAM order. It is unreasonable to insist on filing of successive PATHAK Date: 2024.04.08 17:21:50 +0530 CA No. 138/2023 Vikram vs Suman Page 6 of 9 application when the liability to pay maintenance is a continuous liability.
13. Ld. Counsel for appellant has also argued that no warrant of attachment can be passed under DV Act and procedure prescribed under section 125 CrPC has to be followed and recovery has to be effected under section 421 CrPC.
14. In order to appreciate the procedure followed by Ld. MM in passing the order dated 06.10.2022 and 16.02.2023, it is necessary to reproduce the relevant provisions:
Rule 6 (5) of Rules 2006 :
The applications u/s 12 shall be dealt with and the orders enforced in the same manner laid down u/s 125 of the Code of Criminal Procedure, 1973 (2 of 1974).
Section 125 (3) :
If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fine, and may sentence such person, for the whole, or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be], remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, PURSHOTTAM PATHAK and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.Digitally signed
Explanation. If a husband has contracted marriage with by PURSHOTTAM another woman or keeps a mistress, it shall be considered to be just PATHAK ground for his wife's refusal to live with him. Date:
2024.04.08 17:21:57 +0530 CA No. 138/2023 Vikram vs Suman Page 7 of 9
15. How the warrant of attachment are to be executed, its scheme is embodied in section 421 Cr.P.C. Section 421 Cr.P.C provides as under:-
421. Warrant for levy of fine.
(1)When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may -(a)issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;(b)issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter :Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
16. The movables or immovable property of the JD may be attached by invoking the provisions of section 421 Cr.P.C.
17. The execution petition No. 223/2022 was filed by DH on 17.09.2022 and notice was issued. On 06.10.2022 appellant appeared and he was directed to make the payment and warrants of attachment were also issued. The impugned order dated 16.02.2023 was passed in pursuant to order dated 06.10.2022. The appellant did not objected to the procedure followed by Ld. MM in passing the order dated 06.10.2022 and it was only in the appeal he has taken the plea that the Ld. MM has not followed the prescribed procedure. It is to be noticed that a warrant of PURSHOTTAM PATHAK attachment was passed on 06.10.2022, but the appellant has not challenged the main order dated 06.10.2022. The Digitally signed by PURSHOTTAM appellant has only challenged the order dated 16.02.2023 PATHAK Date:
2024.04.08 17:22:03 +0530 CA No. 138/2023 Vikram vs Suman Page 8 of 9 and even in the prayer clause he has prayed only for setting aside the order dated 16.02.2023. Unless the order vide which warrant of attachment were issued is challenged, the consequential order dated 16.02.2023 can not be challenged.
18. Executing court has followed the procedure of law to the extent of issuing notice to JD on execution petition of DH and then warrant of attachment of property of JD to recover the arrears. Hence, I do not find any reason to take a view different from that taken by the Ld. Trial Court.
19. Several judgments have been relied upon by the appellant.
However, I am of the opinion that in the factual matrix available in the present case, the judgments are hardly of any help.
20. In terms of the above discussion, the present appeal is dismissed.
21. TCR alongwith a copy of this judgment be sent to the Ld. Trial Court
22. Copy of the judgment be given to both the sides.
23. Revision file be consigned to the record room after due Digitally signed by compliance. PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.04.08 17:22:12 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 8th DAY OF APRIL, 2024 SAKET COURTS: N.D (This judgment contains total 9 signed pages) CA No. 138/2023 Vikram vs Suman Page 9 of 9